Services Terms & Conditions

1               DEFINITIONS

1.1       In these Terms & Conditions  (except where the context otherwise requires) the following definitions will apply:-

“the Agreement”
means these Services Terms & Conditions together with a Work Order;

“the Agreement Date”
means the date on which the Customer digitally signs a Work Order using the DocuSign service used by the Service Provider;

“Billing Rates”
means the Service Provider’s standard billing rates as as may be ammended from time to time by the Service Provider;

“Business Day”
means any day which is not a Saturday, a Sunday or a public holiday in the City of London;

“Charges”
means the charges for the Services and or Deliverables as set out in a Work Order;

“Confidential Information”
has the meaning ascribed to such term in Clause 13.1 below;

“Contractor”
means any third party with whom the Service Provider contracts in order to provide the Services;

“Customer”
means the company, companies, person, persons or other legal entity as named by the Service Provider in the various Work Order(s)

“Customer Data”
means all data of the Customer processed by the Service Provider or otherwise provided to the Service Provider pursuant hereto;

“Customer Equipment”
means various items of computer software and hardware owned by the Customer and for which Services are to be provided by the Service Provider as per the Work Order/Orders;

“Customer Materials”
means all materials and specifications provided by the Customer to the Service Provider pursuant to the Services, including all Customer Data;

“Customer IPRs”
means all Customer Intellectual Property Rights in the Customer Materials;

“Data Controller”
has the meaning set out in the European General Data Protection Regulation (GDPR) and the Data Protection Act 2018 (DPA 2018);

“Data Processor”
has the meaning set out in European General Data Protection Regulation (GDPR) and Data Protection Act 2018 (DPA 2018);

“Data Protection Law”
means all applicable data protection law and regulations in any jurisdiction including, for the avoidance of doubt, the Data Protection Act 2018 (DPA 2018) and the European General Data Protection Regulation (GDPR) for so long as they remain applicable in England and Wales;

“Data Subject”
means an individual who is the subject of Personal Data;

“Deliverables”
means any hardware and or software to be provided by the Service Provider to the Customer pursuant to a Work Order/Orders;

“DocuSign”
means the third-party digital signature services provided DocuSign Inc;

“DR Plan”
means the Service Provider’s disaster recovery plan relating to the Customer Equipment and Deliverables; 

“Equipment”
means any IT hardware and or software to be provided by the Service Provider to the Customer that remains the property of the Service Provider and as specified in a Work Order;

“Fault”
means any complete or partial failure ofthe Customers Equipment; ; 

“Event of Force Majeure”
means an instance of force majeure as defined in Clause 17.1;

“Good Industry Practice”
means the exercise of that degree of skill, care and foresight which would reasonably and ordinarily be expected from a skilled and experienced contractor who is to perform the Services and who is seeking in good faith to comply with its obligations under this Agreement;

“Intellectual Property Rights”
means patents, trademarks, service marks, design rights, domain names, database rights, registrations and applications for registration for any of the foregoing, copyright and all rights in the nature of copyright, trade secrets, know-how and other industrial and intellectual property rights, wherever subsisting;

“IT”
means Information Technology;

“Milestone”
means the occurrence of a particular event and as identified by the Service Provider in the Work Order/Orders 

“Normal Business Hours”
means 08:00 to 18:00 local UK time, each Business Day;

“Onsite Support Services”
means those Services carried out by the Service Provider at the Premises by the Service Provider to correct Faults as set out in Clauses 6.6 and 6.7 below;

“Party or Parties”
means the Service Provider and or the Customer;

“Personal Data”
has the meaning set out in the European General Data Protection Regulation (GDPR) and Data Protection Act 2018 (DPA 2018) comprising the Customer Data;

“Processing and Process”
have the meaning set out in the European General Data Protection Regulation (GDPR) and the Data Protection Act 2018 (DPA 2018);

“Premises”
means any premises of the Customer’s where the Services or Deliverables are being provided by the Service Provider an as defined in the Work Order/Orders;

“Remote Response Time”
means the elapsed period of time during Normal Business Hours for the Service Provider to respond by telephone and or email to the Customer in respect to a suspected Fault as defined in Schedule 1 Part 3 below;

“Relief Event”                  means any act or omission or delay by the Customer the effect of which is materially to prejudice the ability of the Service Provider to perform its obligations in accordance with any Work Order/Orders or these Terms & Conditions; 

“Remote Support Services”                          means those Services not provided by the Service Provider at the Premises and as described in the Work Order/Orders and as set out in Clauses 6.2 to 6.5 below;

“Resolution”                   means the procedure to resolve a failed bank, building society or investment firm as set out in a resolution pack drawn drafted pursuant to the Bank Recovery and Resolution (No 2) Order 2014 (SI 2014/3348);

“Services”                        means the services supplied to the Customer by the Service Provider pursuant to a Work Order/Orders, including the Support Services;

“Service Priority Level”  means the level of priority assigned to a Support Notification by the Service Provider in respect to a suspected Fault in accordance with Part 2 of Schedule 1 below;

“Service Provider IPRs” means all Intellectual Property Rights that are owned by or licensed to the Supplier and which are either subsisting in the Deliverables or are otherwise necessary or desirable in respect to the provision of the Services by the Service Provider;

“Software”
means any software used by the Service Provider in order to provide the Services;

 “Support Notification”
means a request from the Customer in respect to a suspected Fault for the provision of the Support Services in accordance with Clause 6.2 below;

“Support Services”
means the Remote Support Services and the Onsite Support Services;

“Support Ticket”
has the meaning given to it in Clause 6.3;

“Technical Account Manager”
means a Service Provider representative who shall be responsible for the provision to the Customer of the Services and as set out in Clause 3 below;

“Third Party Software”
means any open source or other third-party software used or supplied by the Service Provider pursuant to this Agreement and the use of which is subject to the vendor’s licence agreement as specified in a Work Order;

“Timetable”
means the timetable for the performance of the Services and or the delivery and installation of the Deliverables as set out in the Work Order/Orders including any payment schedule;

“Update Frequency Period”
means the period of time (during Normal Business Hours) set out in Part 3 of Schedule 1; and

 “Work Order”
means a document setting out details of the Services and any Deliverables to be provided to the Customer by the Service Provider, including the schedules thereto.

1.2           the Clause headings are included for convenience only and shall not affect the construction or interpretation of this Agreement.

1.3           use of the singular includes the plural and vice versa.

1.4           words importing a particular gender do not exclude other genders.

1.5           any reference to “persons” includes natural persons, firms, partnerships, bodies corporate, corporations, associations, organisations, governments, states, foundations and trusts (in each case whether or not incorporated and whether or not having separate legal personality).

1.6           any reference to a statute, statutory provision or statutory instrument includes a reference to that statute, statutory provision or statutory instrument together with all rules and regulations made under it as amended or consolidated as at the date of this Agreement.

1.7           in the event of conflict between the terms of these Terms & Conditions  and a Work Order, the Work Order will prevail.

2        SERVICES AND DELIVERABLES

2.1           The Customer shall be entitled to request the provision of Services from the Service Provider and, further to any such request, the Parties shall agree the scope of such Services and or Deliverables in accordance with these Terms & Conditions together with each agreed Work Order signed by an authorised representative of the Parties.

2.2           In consideration of the payment of the Charges and any other sums due hereunder and subject to Events of Force Majeure and Relief Events, the Service Provider shall perform the Services and deliver the Deliverables in accordance with these Terms & Conditions together with each Work Order.

2.3           The Service Provider will deliver the Equipment to the Premises or other site as specified in the Work Order/Orders. Unless otherwise agreed by the Service Provider in writing, the Customer will bear all costs associated with delivery.

2.4           Unless otherwise indicated in the Work Order, the Service Provider shall install the Equipment at the Premises during the Service Provider’s Normal Business Hours and installation shall be deemed to have been effected when the Equipment has passed the Service Provider’s own installation tests. If the Service Provider is not required to install the Equipment, the Equipment shall be deemed to have been installed on the date on which it is delivered to the Customer’s Premise as indicated in the Work Order/Orders.

2.5           The Service Provider shall endeavour to ensure any Deliverables shall be delivered and/or installed, as the case may be, on or about the dates agreed by the Service Provider and the Customer in the Work Order but the Service Provider shall not in any circumstances be liable for any delay in such delivery and/or installation.

2.6           Risk shall pass to the Customer on delivery of any Deliverables.

3        TECHNICAL ACCOUNT MANAGER

3.1           For the duration of the Agreement, the Service Provider shall allocate to the Customer a Technical Account Manager. The Service Provider shall use reasonable endeavours to ensure continuity of the Technical Account Manager, but has the right to replace him or her from time to time where reasonably necessary in the interests of the Service Provider’s business.

3.2           The Technical Account Manager shall:

3.2.1           hold a review meeting with the Customer at least once in each quarterly period of a calendar year for the purpose of discussing the provision of the Services and achievement of any applicable service levels and any other appropriate matters in relation to the provision of the Services; and
3.2.2           as and when reasonably requested by the Customer, discuss with the Customer their general IT procurement and IT requirements although, for the avoidance of doubt, the Service Provider shall bear no liability for any actions taken by the Customer further to any such discussions.

4       CUSTOMER OBLIGATIONS

4.1           The Customer shall:

4.1.1           co-operate with the Service Provider in all matters relating to the provision of the Services including following all of the Service Provider’s reasonable instructions as and when provided by the Service Provider or Contractor;

4.1.2           provide such information as the Service Provider or Contractor may request in order to carry out the Services in a timely manner; and

4.1.3           obtain and maintain all necessary licenses and consents and comply with all relevant legislation in relation to the Customers Equipment, Deliverables and the Services.

4.2           Where any delay in the performance of the Services or the delivery and installation of the Deliverables by the Service Provider is caused directly or indirectly by any of the Customer’s actions or omissions (including any breach of clauses 4.1.1 to 4.1.3) the time for performance of the Services or the delivery and installation of the Deliverables as set out in the Work Order/Orders shall be extended by a period of time equivalent to the delay caused directly or indirectly by the Customer’s actions.

5        PERSONNEL AND SECURITY

5.1           Each Party recognises that it is impossible to maintain flawless security but (where relevant) the Service Provider shall take all reasonable steps to prevent security breaches in it’s provision of the Service..

5.2           The Customer is responsible for maintaining the confidentiality of any passwords which are required to benefit from the Services and the Customer solely responsible for any damage caused of any description by any unauthorised access.

5.3           The Service Provider shall be entitled without any liability or notice to the Customer to delete any Customer Data which the Service Provider determines to be infected by viruses or other malware which the Service Provider is unable to eradicate.

5.4           At all times the Service Provider and or Contractor personnel who are engaged in the performance of the Services and the installation of the Deliverables will remain under the employment and management of the Service Provider and or the Contractor, whether or not their activities are carried out on the Premises.

5.5           The Customer shall ensure that, for the duration of the Agreement, the Service Provider and its employees, Contractors and or agents shall at all reasonable times have access to the Premises upon reasonable notice for any reason whatsoever connected with the fulfilment of the Service Provider’s obligations under the Agreement subject to compliance with the reasonable security requirements of the Customer.

5.6           The Customer shall take all reasonable precautions to ensure the health and safety of the Service Provider personnel and those of its Contractors while on the Premises. The Service Provider shall ensure that its personnel and those of its Contractors abide by safety and security rules in operation at the Premises and notified to the Service Provider and shall take all reasonable precautions to ensure that the provision of the Services and delivery and installation of the Deliverables at the Premises does not endanger the health and safety of the Customer’s personnel. The Customer shall be entitled to remove or to refuse admission to any person who is, or has been, in material breach of such procedures and regulations. However, the Service Provider shall incur no liability for any delay in performing or failure to perform its obligations under the Agreement as a result of such removal or refusal of admission.

5.7           The Customer shall be liable for the health, security and safety of Service Provider’s personnel and those of its Contractors whilst they are on the Premises.

5.8           During the course of the Agreement and until the expiration of twelve months from the later of:

5.8.1           the date of termination or expiry of the Agreement for any reason; or
5.8.2           the date that any such individual shall cease to be an employee or a Contractor to the Service Provider:
the Customer shall not directly (either itself or by its agent or by letters, circulars or advertisements and whether for itself or on behalf of any other person) induce or seek to induce any employee of the Service Provider to leave their employment or any Contractor of the Service Provider to cease to be a Contractor to such party. The Customer shall procure that its employees shall observe the terms of this Clause provided that nothing in this Clause shall prevent the Customer from placing job advertisements in the general press or from making offers of employment in response to unsolicited enquiries. The Customer agrees that if it employs any person contrary to the provisions of this Clause it shall be liable to pay to the Service Provider liquidated damages (agreed to be a genuine and reasonable pre-estimate of loss and not of the nature of a penalty) equal to the relevant employee or Contractor’s annual salary or remuneration at the time of leaving the employment of the Service Provider or terminating his contract with the Service Provider.

6        SUPPORT SERVICES

6.1           The Service Provider shall provide the Support Services as set out in the terms of each Work Order/Orders and this Clause 6.

6.2           Subject to Clause 6.5, the Remote Support Services shall be provided during Normal Business Hours upon the Service Provider receiving a request for the correction of a suspected Fault from the Customer by either telephone, e-mail or via the online Customer portal in accordance with the contact details set out in Part 1 of Schedule 1 (or such other means of notification as may be notified by the Service Provider to the Customer from time to time).

6.3           Upon receipt of a Support Notification, the Service Provider shall determine the priority of the Support Notification, the Service Providers will assign a Service Priority Level to the Support Notification and the Service Provider will provide the Customer with a unique reference number in respect of the Support Notification setting out its Service Priority Level (a “Support Ticket”).

6.4           The Service Provider shall allocate at least one of its personnel or a Contactor to each Support Ticket who shall respond to the Customer within the Remote Response Time (starting from the time at which the Service Provider sends the Support Ticket information to the Customer) to inform it that remedial action is being taken in respect of the relevant Support Notification. The Customer shall thereafter be provided with updates as to the progress made to remedy the suspected Fault within the Update Frequency Period until the suspected Fault has been resolved. However, the parties acknowledge that the Service Provider may, acting reasonably in the course of providing the Remote Support Services, amend the Service Priority Level in respect of a Support Notification and re-issue the applicable Support Ticket to the Customer and, for the avoidance of doubt, thereafter the progress updates shall be provided to the Customer in accordance with the revised Update Frequency Period.

6.5           The Service Provider shall only provide the Remote Support Services outside of Normal Business Hours if this is agreed in the relevant Work Order/Orders. Any such performance of the Remote Support Services outside of Normal Business Hours shall either be charged on a time spent basis in accordance with the Service Provider’s then current Billing Rates or, if applicable, as set out in the Charges relating to the provision of Remote Support Services outside of Normal Business Hours in the relevant Work Order/Orders.

6.6           Should the Service Provider, in its reasonable opinion, decide that the provision of the Remote Services is unable to remedy the suspected Fault relating to a Support Ticket, it shall inform the Customer and the Customer may reasonably request the provision of the Onsite Support Services, whereupon the Service Provider shall schedule a visit to the relevant Premises, during Normal Business Hours, to carry out the remedial work necessary in respect to that Support Ticket.

6.7           The parties acknowledge that the Onsite Support Services shall either be charged on a time spent basis in accordance with the Service Provider’s then current Billing Rates or, if applicable, as set out in the Charges relating to the provision of Onsite Support Services in the relevant Work Order/Orders.

6.8           The Service Provider shall be under no obligation to provide the Support Services due to and arising from:

6.8.1           any failure of the Customer or its employees or agents to comply with the Agreement or any user manual or other documentation supplied by the Service Provider or a relevant manufacturer;

6.8.2           any breach by the Customer to maintain the environmental conditions recommended by the Service Provider or relevant manufacturer relating to any of the Customer Equipment and or Deliverables; or

6.8.3           any Support Notification in respect a suspected Fault in respect of which three Support Tickets have been previously raised by the Service Provider and the Customer has failed to comply with the Service Provider’s previous reasonable recommendations relating to the remedy of the relevant suspected Fault; or

6.8.4           any support or maintenance services provided to the Customer in relation to the provision of the Services, the Customer Equipment, and or Deliverables by persons not authorised or approved to do so in writing by the Service Provider; or

6.8.5           any malicious or intentional damage to the Deliverables Customer Equipment or Software by the Customer, its employees, officers, agents or contractors; or

6.8.6           the use by the Customer of the Deliverables, Customer Equipment or Software for any purpose which breaches any applicable laws or regulations; or

6.8.7           electrical work external to the Customer Equipment and or Deliverables; or

6.8.8           relocation of the Customer Equipment and or Deliverables; or

6.8.9           interruptions to the flow of data to or from the internet.

6.9           The Service Provider provides no representation or warranty to the Customer that any Faults will be fixed, however it shall exercise its reasonable endeavours to remedy any suspected Fault.

7        PAYMENT TERMS

7.1           In consideration of the performance by the Service Provider of the Services and the delivery of the Deliverables, the Customer shall pay the Service Provider the Charges in accordance with the provisions of this Clause 7.

7.2           The Service Provider shall issue invoices for the Charges in accordance with the invoicing procedure set out below.

7.3           Invoices will be rendered in accordance with each Work Order. All invoices rendered hereunder shall be paid in full within 30 days from the date of invoice unless otherwise specified in the Work Order. If all or any Charges included in an invoice remain outstanding on the date for payment, the Service Provider reserves the right to charge interest on the outstanding amount to run from the date of the invoice at 3 percent per annum above the then base lending rate of Barclays Bank. Such interest shall accrue on a daily basis from the due date until payment in full (including all interest due) is received by the Service Provider, save in the event of a bona fide dispute in relation to such outstanding amount.

7.4           Where a bona fide dispute arises as to the amount of all or part of an invoice, such disputed amount shall be payable within 30 days of such dispute being resolved to the reasonable satisfaction of both parties and any undisputed amount shall remain payable in accordance with Clause 7.2.

7.5           All Charges and other amounts payable under the Agreement are exclusive of VAT and any other taxes. Such taxes, where applicable, will be shown separately on the Service Provider’s invoice and will be paid by the Customer at the rate and in the manner prescribed by law.

7.6           All reasonable expenses incurred by the Service Provider’s employees and or Contractors for work carried out away from the Service Provider’s normal place of business will be re-charged to the Customer, provided that any such expenses are approved in advance and in writing by the Customer, such approval not to be unreasonably withheld or delayed.

8       INTELLECTUAL PROPERTY RIGHTS

8.1           The Service Provider IPRs shall vest in the Service Provider or its licensors and shall remain the exclusive property of the Service Provider or its licensors unless the Service Provider otherwise agrees in writing.

8.2           In consideration of payment of the associated Charges, the Service Provider shall:

8.2.1           grant to the Customer a fully paid-up worldwide, non-exclusive, royalty-free licence during the term of each Work Order to use the Service Provider IPRs for the purpose of receiving and using the Services and any Deliverables in its business; and

8.2.2           use reasonable endeavours to procure that the third-party owner of any Third Party Software grants to the Customer a licence to use the Third Party Software.

8.3           The Customer shall not sub-licence, assign or otherwise transfer the rights granted in Clauses 8.2.1 and 8.2.2 to any third-party.

8.4           The Customer grants the Service Provider a fully paid-up, non-exclusive, royalty-free, non-transferable license to use, copy and modify the Customer IPRs for the term of the Agreement for the purpose of providing the Services to the Customer.

8.5           The Customer hereby indemnifies and holds the Service Provider harmless against any and all lliabilities, costs, expenses, damages and losses (including, but not limited to, any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by the Service Provider arising out of or in connection with:

8.5.1           any claim from a third-party that the Customer IPRs breach the Intellectual Property Rights of that third-party; or

8.5.2           any claims of whatsoever nature and however arising from or connected with the Deliverables or the Services where such claims are directly or indirectly caused by any materials, content or data provided by or on behalf of the Customer or any act or omission of the Customer or any of its agents or representative, including, without limitation, the introduction of any virus or malware.

9        DATA PROTECTION

9.1           The parties acknowledge that for the purposes of the European General Data Protection Regulations (GDPR) and the Data Protection Act 2018 (DPA 2018), the Customer is the Data Controller and the Service Provider is the Data Processor in respect of any Personal Data.

9.2           The Service Provider shall Process the Personal Data solely to the extent necessary to provide the Services in accordance with the terms of the Agreement and shall not process the Personal Data for any purpose other than those expressly authorised by the Company.

9.3           Each party warrants to the other that it will Process the Personal Data in compliance with the requirements of the European General Data Protection Regulations (GDPR) and the Data Protection Act 2018 (DPA2018).

9.4           The Processor warrants that, having regard to the state of technological development and the cost of implementing any measures, it will:

9.4.1           take appropriate technical and organisational measures against the unauthorised or unlawful Processing of Personal Data and against the accidental loss or destruction of, or damage to, Personal Data to ensure a level of security appropriate to:

9.4.1.1           the harm that might result from such unauthorised or unlawful Processing or accidental loss, destruction or damage; and

9.4.1.2           the nature of the data to be protected; and

9.4.2           take reasonable steps to ensure compliance with those measures.

9.5           The Customer acknowledges that the Service Provider is reliant on the Customer for direction as to the extent to which the Processor is entitled to use and Process the Personal Data. Consequently, the Service Provider will not be liable for any claim brought by a Data Subject arising from any action or omission by the Service Provider, to the extent that such action or omission resulted directly from the Customer’s instructions.

9.6           The Service Provider warrants that the Personal Data will only be Processed within the United Kingdom for the purposes of the provision of the Services.

9.7           The Service Provider shall, within a reasonable period further to receipt of a written request from the Customer, provide to the Customer copies of the Customer Data set out in that request (in a format and on the media reasonably agreed between the parties), provided that the Customer shall pay all reasonable expenses incurred by the Service Provider in providing such Customer Data.

9.8           The Service Provider shall permit the Customer, on reasonable notice during Normal Business Hours, to gain access to the Service Provider’s data centre(s) where the Customer Data is Processed solely for the purposes of inspecting the facilities and records maintained by the Service Provider relating to the Processing of the Customer Data. Such audit rights may only be exercised by the Customer once in any calendar year during the term of the Agreement and the Customer agrees that its personnel must abide by all safety and security rules in operation at such premises from time to time or notified to them by the Service Provider.

9.9           The Service Provider shall inform the Customer if any Customer Data is lost or destroyed or becomes damaged, corrupted, or unusable (a “Data Breach”). The Service Provider shall, at its own expense, investigate any Data Breach and shall use reasonable endeavors to identify, prevent and mitigate the effects of such Data Breach, including carrying out any recovery or other action necessary to remedy the Data Breach.

10      WARRANTIES

10.1           The Service Provider warrants to the Customer that:

10.1.1           it will perform the Services and deliver the Deliverables as defined in the Work Order/Orders in a timely, reliable and professional manner, in conformity with Good Industry Practice by a sufficient number of competent staff with appropriate skills, qualifications and experience;

10.1.2           it has full right, power and authority to provide the Services and deliver the Deliverable as defined in the Work Order/Orders to the Customer in accordance with the terms of theAgreement;

10.1.3           it will provide the Services and deliver the Deliverables to the Customer using reasonable care and skill in accordance with the terms of the Agreement; and

10.1.4           if appropriate to the Work Order/Orders will provide the Customer with a copy of its DR Plan within 90 days of the date of the Agreement and shall:

10.1.4.1           comply with its terms throughout the term of the Agreement; and

10.1.4.2           notify the Customer as soon as reasonably practicable in the event that the DR Plan is invoked by the Service Provider.

10.2           Each party warrants to the other that, further to receiving written notification from the other party that it has committed a material breach of the Agreement, it shall use reasonable endeavours to remedy such breach (if it is remediable) as soon as reasonably practicable.

10.3           Save as set out in the Agreement, the Service Provider makes no warranty, representation or undertaking in respect of any of the Deliverables or the provision of the Services and the warranties set out in Clause 10.1 are in lieu of and exclude all other express or implied warranties or conditions, including implied warranties or conditions of satisfactory quality and fitness for a particular purpose, in relation to the Agreement to the fullest extent permitted by law.

10.4           The Service Provider makes no warranty that operation of the Services will be uninterrupted or error-free.

10.5           In the case of faults or defects in Third Party Software or any part of the Deliverables acquired from a third party, the Service Provider’s sole liability shall be to (to the extent it is entitled to do so) pass on to Customer the benefit of its rights and remedies against such third party.

10.6           Should the Customer (or any person or entity other than the Service Provider) make any modifications to a Deliverable, the Service Provider shall not be responsible for any resulting incompatibility with any other IT system, service software and or product.

11     LIABILITY

11.1           The following provisions set out the entire financial liability of the Service Provider (including any liability for the acts or omissions of its employees, agents and Contractors) to the Customer in respect of:

11.1.1           any breach of the Agreement;

11.1.2           any use made by the Customer of the Services, the Deliverables or any part of them; and

11.1.3           any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Agreement.

11.2           Nothing in the Agreement shall limit or exclude the Service Provider’s liability for:

11.2.1           death or personal injury caused by its negligence, or the negligence of its employees, agents or Contractors;

11.2.2           fraud or fraudulent misrepresentation; or

11.2.3           any other liability which cannot be limited or excluded by applicable law.

11.3           Subject to Clauses 11.1 and 11.2, the Service Provider shall not be liable, whether in contract, tort (including negligence), breach of statutory duty, or otherwise for any loss of profits, loss of business, depletion of goodwill, loss of anticipated savings, loss of goods, loss of contract, loss of use, loss or corruption of data or information or any indirect or consequential loss arising under or in connection with the Agreement.

11.4           Subject to Clauses 11.1 and 11.2, the Service Provider’s total liability to the Customer whether in contract, tort (including negligence), breach of statutory duty, misrepresentation, restitution or otherwise, arising under or in connection with the Agreement shall be limited to the maximum amount which the Service Provider may claim under its professional indemnity insurance in relation to a single claim on the date of any applicable claim from the Customer.

12     CHANGE CONTROL

12.1           Any changes to the Services or the Deliverables shall be subject to the change control procedure set out in this Clause 12 unless the parties agree in writing otherwise.

12.2           If during the performance of the Services, the Customer wishes to modify or add to the Services, the Customer shall supply to the Service Provider written particulars of the proposed change(s) to the appropriate Work Order/Orders (the “Addition”) and such further details as the Service Provider may request.

12.3           If requested so to do, the Service Provider will provide the Customer with a fixed cost for the Addition (the “Additional Assignment Price”). Otherwise costs of the Addition may be estimated on a time and materials basis (the “TM Additional Estimate”).

12.4           Upon notification of the Additional Assignment Price or the TM Additional Estimate, the Customer may elect either:

12.4.1           to accept such quotation in which case the Work Order/Orders shall be amended in accordance with its terms; or

12.4.2           to withdraw such proposed amendments in which case the Work Order/Orders shall continue in force unchanged.

12.5           If the Customer determines that the Addition is to be carried out, full particulars of the Addition are to be recorded in a written memorandum to be appended to the Work Order/Orders as a document in the form of a Schedule (an example of which is set out in Schedule 2 below).

12.6           The Service Provider will provide to the Customer a revised Work Order including the Addition (the “Revised Work Order”).

12.7           The Customer and the Service Provider must sign the Revised Work Order using DocuSign

12.8           The Agreement for a Work Order is superseded by the Agreement for the Revised Work Order.

12.9           Additions will be carried out as part of and on the terms and conditions of the Agreement.

13            CONFIDENTIALITY

13.1           Each Party recognises that under the Agreement it may receive trade secrets and/or confidential or proprietary information belonging to the other Party. Subject to the exclusions detailed in Clause 13.3, all such information which is designated as confidential or which is otherwise clearly confidential in nature constitutes “Confidential Information”.

13.2           Each Party agrees not to divulge Confidential Information belonging to the other Party or to any third party, without the other Party’s prior written consent.

13.3           The following shall not be Confidential Information for the purposes of this Clause:

13.3.1           information which is in, or which comes into, the public domain otherwise than by reason of a breach of the Agreement or of any other duty of confidentiality relating to that information;

13.3.2           information obtained from a third party without that third party being under an obligation (express or implied) to keep the information confidential;

13.3.3           information which is lawfully in the possession of the other Party before the date of the Agreement and in respect of which that Party is not under an existing obligation of confidentiality.

13.4           Each Party shall be permitted to disclose Confidential Information to the extent that it is required to do so:

13.4.1           to enable the disclosing party to perform its obligations under the Agreement;

13.4.2           by any applicable law or by a court, arbitral or administrative tribunal in the course of proceedings before it;

13.4.3           by any regulatory body (including any investment exchange) acting in the course of proceedings before it or any regulatory body (including any investment exchange) acting in the course of its duties, or

13.4.4           in order to give proper instructions to any professional adviser of that Party who also has an obligation to keep any such Confidential Information confidential.

13.5           The obligation in Clause 13.1 above will survive the expiry or termination of the Agreement for a period of 5 years or, in respect of any particular item of Confidential Information, until such earlier time as that item of Confidential Information reaches the public domain otherwise than by reason of a breach of the Agreement or of any other duty of confidentiality relating to that information.

13.6           Each Party shall ensure all relevant employees, agents and Contractors are aware of the confidentiality of the Confidential Information and take all such steps to ensure compliance by its employees, agents and Contractors with these confidentiality provisions.

13.7           For the avoidance of doubt, all Customer Data shall remain at all times the exclusive property of the Customer and may only be used by the Service Provider in order to fulfil its obligations pursuant hereto (including, for the avoidance of doubt, the transfer of such data by the Service Provider to its Contractors in order to provide the Services).

14     TERM AND TERMINATION

14.1           This Agreement shall commence on the Agreement Date and shall continue thereafter unless it is either terminated in accordance with its terms or by either Party giving the other Party not less than 60 days’ written notice to terminate.

14.2           The Agreement Date is the date on which both Parties have signed the Work Order/Orders with DocuSign.

14.3           Without prejudice to any other rights or remedies to which the Parties may be entitled and subject to Clause 14.8, either Party may terminate, without liability to the other:

14.3.1           the relevant Work Order/Orders to which the breach relates, if the other Party commits a material breach of the Agreement and/or such Work Order/Orders (including without prejudice to the generality of the foregoing failure to make payment) and (if such a breach is remediable) fails to remedy that breach within 30 days of that Party being notified in writing of the breach; or

14.3.2           the Agreement if:

14.3.2.1           the other Party commits a material breach of the Agreement (including without prejudice to the generality of the foregoing failure to make payment) and (if such a breach is remediable) fails to remedy that breach within 30 days of that Party being notified in writing of the breach; or

14.3.2.2           an order is made or a resolution is passed for the winding up of the other Party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order of the other Party; or

14.3.2.3           an order is made for the appointment of an administrator to manage the affairs, business and property of the other Party, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the other Party, or notice of intention to appoint an administrator is given by the other Party or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986); or

14.3.2.4           a receiver is appointed of any of the other Party’s assets or undertaking, or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other Party, or if any other person takes possession of or sells the other Party’s assets; or

14.3.2.5           the other Party makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way, or becomes bankrupt; or

14.3.2.6           the other Party ceases, or threatens to cease, to trade; or

14.3.2.7           the other party takes or suffers any similar or analogous action in any jurisdiction in consequence of debt.

14.4           Termination of the Agreement, however arising, shall not affect or prejudice the accrued rights of the Parties as at termination or the continuation of any provision expressly stated to survive in Clauses 14.5 or 14.6, or implicitly surviving, termination.

14.5           Clauses 8 (Intellectual Property Rights), 11 (Liability), 13 (Confidentiality) and 25 (Governing Law, Jurisdiction and Disputes) shall survive termination of the Agreement.

14.6           In the event that the Agreement is terminated as provided for herein:

14.6.1           each Work Order/Ordersthen in force at the date of such termination shall nevertheless continue in full force and effect for the remainder of the term of such Work Order/Orders, unless earlier terminated in accordance with the terms of such Work Order/Orders; and

14.6.2           following the termination of the term of the last Work Order in force, each Party shall return to the other all tangible or other property belonging to the other Party then in its possession, custody or power (including all relevant Equipment but save for the Customer Data); and

14.6.3           following the termination of the term of the last Work Order in force, the Service Provider may destroy or otherwise dispose of any of the Customer Data in its possession at its discretion (subject to the terms of applicable Data Protection Laws) unless the Service Provider receives, no later than 30 days after the effective date of the termination of the Agreement, a written request for the delivery to the Customer of its Customer Data or is destruction. The Service Provider shall use reasonable commercial endeavours to deliver (in a format and on the media reasonably agreed between the Parties) or dispose of such Customer Data further to receipt of such a written request, provided that the Customer has, at that time, paid all Charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by the Service Provider in returning or disposing of Customer Data.

14.7           In the event that any Work Order is terminated, the Service Provider shall, if so requested by the Customer, provide all assistance reasonably required by the Customer to facilitate the smooth transition of the provision of the Services provided pursuant to that Work Order to either the Customer or any replacement supplier appointed by it, provided that the Customer shall pay all reasonable expenses incurred by the Service Provider in facilitating such transition.

14.8           If any of the rights of the Service Provider set out in Clause 14.3 arise as a consequence of the Customer entering into Resolution, the Service Provider shall not be permitted to exercise such rights until such time as the Resolution has been concluded and, for the avoidance of doubt, the Service Provider shall not delete, revoke, alter or change any Customer Data during such period.

15     SET-OFF

All amounts due under the Agreement shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

16     WAIVER AND REMEDIES

16.1           Any failure to exercise or any delay in exercising a right or remedy provided by the Agreement or at law or in equity shall not constitute a waiver of the right or remedy or a waiver of any other rights or remedies. A waiver of a breach of any of the terms of the Agreement or of a default under the Agreement shall not constitute a waiver of any other breach or default and shall not affect the other terms of theAgreement.

16.2           The rights and remedies provided by the Agreement are cumulative and (subject as otherwise provided in the Agreement) are not exclusive of any rights or remedies provided at law or in equity.

17      FORCE MAJEURE

17.1           “Event of Force Majeure” means an event which falls within one or more of the following categories:

17.1.1           riot, civil unrest, military action or terrorism;

17.1.2           damage to or destruction of premises or equipment;

17.1.3           earthquake, storm, flood or other natural disaster;

17.1.4           deliberate sabotage of, or malicious damage to equipment or data (not attributable to the Service Provider or any of its employees or Contractors);

17.1.5           industrial action, strikes or lock-outs by employees of third parties (including suppliers and Contractors of the Service Provider);

17.1.6           inability to obtain supplies of power, fuel, or transport; and

17.1.7           exercise of emergency powers by any governmental authority whether national, regional or local.

17.2           Either Party shall be released from its obligations (other than an obligation to pay money) to the extent that performance thereof is delayed hindered or prevented by an Event of Force Majeure or any other circumstances beyond its reasonable control.

17.3           If a Party is prevented from performing its obligations under the Agreement by an Event of Force Majeure which continues for more than 3 months then either Party shall be entitled to terminate the Agreement without liability to the other Party forthwith on giving written notice of termination to the other Party.

18     NO PARTNERSHIP/AGENCY

Nothing in the Agreement is intended to create a partnership or joint venture of any kind between the Parties, or to authorise either Party to act as agent for the other. Save where expressly so stated in the Agreement, neither Party shall have authority to act in the name or on behalf of or otherwise to bind the other.

19     ASSIGNMENT AND SUB-CONTRACTING

19.1           The Customer shall not, without the prior written consent of the Service Provider, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Agreement.

19.2           The Service Provider may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Agreement.

19.3           Any purported assignment which does not comply with the terms of this Clause shall, as between the parties to this Agreement, be null and void.

20    ENTIRE AGREEMENT AND VARIATION

20.1           These Terms & Conditions , together with a Work Order entered into by the Parties, constitutes the entire Agreement and understanding between the Parties in respect of the matters dealt with in them and supersedes cancels and nullifies any previous agreement between the Parties relating to such matters notwithstanding the terms of any previous agreement or arrangement expressed to survive termination.

20.2           Without prejudice to any liability for fraudulent misrepresentation or fraudulent misstatement, each of the Parties acknowledges and agrees that in entering into this Agreement, and the documents referred to in it, it does not rely on, and shall have no remedy in respect of, any statement, representation, warranty or understanding (whether negligently or innocently made) of any person (whether party to the Agreement or not) other than as expressly set out in the Agreement. The only remedy available to it for breach of the warranties shall be for breach of contract under the terms of the Agreement.

21     SEVERANCE

21.1           If any provision of the Agreement shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall not affect the other provisions of the Agreement which shall remain in full force and effect.

21.2           If any provision of the Agreement is so found to be invalid or unenforceable but would be valid or enforceable if some part of the provision were deleted, the provision in question shall apply with such modification(s) as may be necessary to make it valid.

21.3           The Parties agree, in the circumstances referred to in Clause 21.1 and if Clause 21.2 does not apply, to attempt to substitute for any invalid or unenforceable provision a valid or enforceable provision which achieves to the greatest extent possible the same effect as would have been achieved by the invalid or unenforceable provision. The obligations of the Parties under any invalid or unenforceable provision of the Agreement shall be suspended while an attempt at such substitution is made.

22     NOTICES

22.1           Any notice given under or in relation to the Agreement shall be in writing and signed by or on behalf of the Party giving it and may be served by:

22.1.1           delivering it personally or by sending it by pre-paid first class post, or recorded delivery or registered post; or

22.1.2           by facsimile transmission;
without prejudice to any such other modes of service as may from time to time be permitted by the Civil Procedure Rules 1999 and any Practice Directions applying thereto or any amendment or re-issue thereof to the address and for the attention of the relevant party set out in Clause 22.3 or in the event that another address has been notified by a party hereunder in accordance with and making specific reference to this Clause 22.1 then to that other address.

22.2           Any such notice shall be deemed to have been received:

22.2.1           if delivered personally, at the time of delivery;

22.2.2           in the case of pre-paid first class post or recorded delivery or registered post, 48 hours from the date of posting if from and to an address in the United Kingdom or Northern Ireland and 5 days from the date of posting if from and to an address elsewhere;

22.2.3           in the case of facsimile 12 hours after the time of transmission provided an error-free transmission confirmation has been received by the sender and provided that within 24 hours of transmission a copy of the facsimile is sent by post to the intended recipient, in accordance with the provisions of Clause 22.1.
Provided that if deemed receipt occurs before 9am on a Business Day the notice shall be deemed to have been received at 9am on that day, and if deemed receipt occurs after 5pm on a Business Day, or on a day which is not a Business Day, the notice shall be deemed to have been received at 9am on the next Business Day.

22.3           The addresses and fax numbers of the Parties for the purposes of Clause 22.1 to be include in a Work Order/Ordes.

22.4           In proving such service it shall be sufficient to prove that the envelope containing such notice was addressed to the address of the relevant party set out in Clause 22.3 (or as otherwise notified by that party hereunder) and delivered either to that address or into the custody of the postal authorities as a pre-paid recorded delivery, registered post or airmail letter, or that the notice was transmitted by fax to the fax number of the relevant party as set out under the provisions of Clause 22.3 (or as otherwise notified by that Party in writing to the other Party from time to time).

22.5           For the purpose of this Clause “first class post” includes recorded delivery and registered post.

23     CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999

No term of the Agreement is enforceable under the Contracts (Rights of Third Parties) Act 1999 by a person who is not a party to the Agreement.

24     GOVERNING LAW, JURISDICTION AND DISPUTES

24.1           The Agreement, its subject matter or its formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law.

24.2           If any dispute which arises between the parties concerning the Agreement that cannot be resolved between the individuals concerned within seven Business Days then either Party may refer the matter to be considered by both Parties’ managing directors (or such person that holds equivalent office who has been nominated in writing by that Party for this purpose) who shall meet and use their best endeavours to resolve the issue within seven Business Days of such reference failing which the dispute shall be determined as follows (whether or not the relevant provision of the Agreement contains an express reference to this Clause):

24.2.1           if the dispute shall be of a technical nature relating to the Services or any similar or related matter, either Party may refer it for final settlement to an expert nominated jointly by the Parties or, failing such nomination within 20 Business Days after either Party’s request to the other thereof, nominated at the request of either Party by the President at that time of the Chartered Institute for IT. Such expert shall be deemed to act as an expert and not as an arbitrator. His decision shall (in the absence of manifest error) be final and binding on the Parties and his fees for so acting shall be borne by the Parties in equal shares unless he determines that the conduct of either Party is such that such Party should bear all (or such proportion as he may decide) of such fees; and

24.2.2           in any other case the dispute shall be determined by the courts of England and Wales and the Parties hereby submit to the exclusive jurisdiction of such courts for such purpose.

24.3           In the event of a dispute between the Parties concerning the Agreement, each party agrees to continue to perform its obligations under the Agreement during the resolution (pursuant to Clause 25.2) of such dispute unless and until the Agreement is terminated in accordance with its terms.

Schedule 1 – Support Services

Part 1 – Contact details

Part 2 – Service Priority Levels

Part 3 – Remote Response Time and Update Frequency Period