1. Interpretation

1. The following definitions and interpretations apply to these General Terms and Conditions of Service (“Conditions”):
   • Activation Date: the date from which the Supplier considers that the Managed Services are ready for activation and commences provision of such services to the Customer.
   • Business Day: Monday to Friday excluding public holidays in England and Wales.
   • Business Hours: 8:30 a.m. to 5.30 p.m. on any Business Day.
   • Cancellation Charge: An amount equal to:
     1. if the cancellation takes effect after the later of the Contract Start Date and the Activation Date, the Fees that would otherwise have been payable from the date the Managed Service is cancelled to the date such Managed Service was scheduled to expire in accordance with the Contract; and
     2. if the cancellation takes effect before the later of the Contract Start Date and the Activation Date, any non-recurring Fees payable plus 50 per cent of the other Fees payable during the Initial Term, plus in each case any other amounts specified as payable as part of the Cancellation Charge in the Quotation.
   • Change of Control: means the sale of all or substantially all the assets of a Party; any merger, consolidation or acquisition of a Party with, by or into another entity or person or any change in the ownership of more than fifty percent (50%) of the voting capital of a Party in one or more related transactions.
   • Change Control Procedure: The procedures for making technical and operational changes to the Managed Services as set out in the Managed Services Contract.
   • Confidential Information: Confidential Information means any information, technical data or know-how, in any medium, which may be marked “confidential”, which the receiving Party knows or reasonably ought to know is confidential, or which is by its nature confidential, except information, technical data or know-how which:
     1. is in the possession of the receiving Party at the time of disclosure, is not subject to an obligation of confidentiality and can be demonstrated beyond doubt as being in the receiving Party’s files and/or records immediately prior to the time of disclosure;
     2. prior to or after the time of disclosure becomes public knowledge, other than as a result of breach by the receiving Party of its obligations under the Contract;
     3. is approved for release by the disclosing Party; or
     4. is independently developed by the receiving Party without the use of any Confidential Information of the disclosing Party.
   • Consultancy Services: Specialist advisory work which the Supplier may undertake for the Customer from time to time if specified in the Contract.
   • Contract: The Managed Services Contract (including any Quotation signed by the Parties as a consequence of the Managed Services Contract) and these Conditions.
   • Contract Start Date: The date specified as such in the Managed Services Contract.
   • Customer: the person, firm or company who purchases Devices and/or Managed Services from the Supplier as identified in the Contract.
   • Customer Data: Any data uploaded to or stored on the Supplier’s System or otherwise processed by the Supplier in the course of providing the Managed Services to the Customer.
   • Customer Devices: Any hardware used by the Customer that is not provided by the Supplier that will be supported and/or managed by the Supplier under the terms of the Contract.
   • Customer Site: Any premises occupied by the Customer at which Customer Site Equipment is located and it receives the Managed Services.
   • Customer Site Equipment: Any Customer Devices or Supported Devices located or to be located on a Customer Site but managed or supported by the Supplier as part of the Managed Services.
   • Data Protection Laws: as binding on either party or the Managed Services: the Directive 95/46/EC (Data Protection Directive) and/or Data Protection Act 1998 or the GDPR; any laws which implement any such laws; and any laws that replace, extend, re-enact, consolidate or amend any of the foregoing;
   • Devices: the items of Hardware (including where specified in the Contract, Software) that the Customer purchases from the Supplier as specified in the Contract (but excluding the Customer Devices).
   • Employee(s): any person who immediately prior to the Activation Date was an employee of the Customer and assigned to the Managed Services.
   • Employee Costs: means all costs associated with the employment of the Supplier Personnel including all taxes, national insurance, pension contributions and other costs related to the same.
   • Employee Information: an up to date and accurate list containing for each individual the anonymised information listed in regulation 11(2) of TUPE.
   • Employee Liabilities: means all liabilities, including but not limited to claims for redundancy payments, unlawful deductions from wages, unfair, wrongful or constructive dismissal compensation, compensation for age, sex, race or disability discrimination or discrimination on the grounds of religion, belief, age or sexual orientation or claims for equal pay, compensation for less favourable treatment of part-time workers, and any other claims whether in tort (including negligence), contract or statute or otherwise, and any demands, actions, proceedings and any award, compensation, damages, tribunal awards, fine, loss, order, penalty, disbursement, payment made by way of settlement and costs and expenses reasonably incurred in connection with a claim or investigation, and any expenses and legal costs on an indemnity basis.
   • Excluded Support: Any services provided by the Supplier where the malfunction or failure results from or is caused by any of the following:
     1. equipment, materials or software not supplied, taken-on or approved by the Supplier;
     2. any maintenance, alteration, modification or adjustment performed by persons other than the Supplier unless approved by the Supplier;
     3. the Customer or a third-party moving or interfering with the Supported Devices or Software;
     4. a breach by the Customer of any of the provisions of the Contract or other agreement under which the Supported Devices or Software were supplied;
     5. a failure, interruption or surge in the electrical power or its related infrastructure connected to the Supported Devices or Software;
     6. the neglect or misuse of the Supported Devices or Software;
     7. a delay in resolving issues due to the Customer preventing the Supplier performing required maintenance and / or updates; and
     8. any issues that are reasonably beyond the control of the Supplier including those caused by equipment, software or services outside of the control of the Supplier, acts of God or fire, flood, sabotage, strike etc. (Force Majeure).
   • Fees: All of the fees payable to the Supplier by the Customer in respect of the Managed Services, whether one-off or recurring, as set out in the Contract (or Quotation) in respect of the Initial Term and Renewal Term.
   • GDPR: The General Data Protection Regulation (EU) 2016/679;
   • Good Industry Practice: The degree of skill and care which it is reasonable to expect of a provider of services similar to the Managed Services.
   • Good Working Order: Where the Supported Devices (and where appropriate, Software) operate substantially in accordance with the relevant operating manuals or specifications.
   • 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.
   • Initial Term: The number of months set out in the Contract or unless as stated in the Quotation.
   • Initial Quotation: The first document entitled “Quotation” or “Proposal” (or both) issued by the Supplier in response to the Customer’s request for Managed Services, setting out at least a high-level description of the Managed Services to be provided, and the corresponding Fees payable by the Customer.
   • Intellectual Property Rights: Any and all intellectual property rights of any nature, whether registered, registerable or otherwise, including 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.
   • KPI: Key Performance Indicator
   • Managed Services: the services to be provided by the Supplier under the Contract (including any applicable Support Services).
   • Managed Services Contract: a contract agreed in writing between the parties for the Managed Services which is subject to these Conditions
   • Parties: each party to the Contract as defined in the Managed Services Contract.
   • Previous Supplier: means any third-party supplier providing services to the Customer which were identical or substantially similar to any of the Managed Services and which the Customer received immediately prior to the Activation Date.
   • Protected Data: Personal Data received from or on behalf of the Customer in connection with the performance of the Supplier’s obligations under this Contract;
   • Quotation: collectively, the Initial Quotation and any supplementary or subsequent Quotation following the Initial Quotation or a Managed Services Contract and all documents scheduled or attached thereto, which is a written statement provided by the Supplier to the Customer prior to concluding a request, setting out the specification, scope, price and any other relevant details in respect of, and summarising any specific terms for any products and/or services to be provided including any revisions or updates to an existing Managed Services Contract. Notwithstanding that a Quotation may be a separate document and/or delivered at a later date, it supplements and once signed by the Customer, forms part of the Contract.
   • Recovery Time Objective (RTO): the duration of time within which a business process must be restored after a disruption in order to avoid unacceptable losses. RTO begins when a disaster hits and does not end until all systems are up and running.
   • Recovery Point Objective (RPO): the point in time to which a Customer must recover data as defined by the Customer. The RPO is what a Customer determines is an “acceptable loss” in a disaster situation and dictates which replication method will be required (e.g. nightly backups, snapshots, continuous replication).
   • Replacement Supplier: means any third-party supplier providing services to the Customer which are identical or substantially similar to any of the Services and which the Customer receives in substitution for any of the Services following termination of this Contract.
   • Renewal Term: A period of 12 months from the expiry of the Initial Term or the previous Renewal Term, as the case may be.
   • Response Time: is the time from when the Customer first logs a request for assistance via telephone or email, to the time that the Supplier responds with a suitably qualified employed person whether via an email, telephone call or in person.
   • Service Credits: Any credits payable to the Customer in accordance with the Suppliers performance against KPIs as set out in the Contract.
   • Service Levels: The metrics for measuring the performance of the Managed Services.
   • Software: any operating system or other software supplied by the Supplier to the Customer under the Contract or used to provide the Managed Services including the Supplier Software.
   • Sub-Processor: any agent, subcontractor or other third party (excluding its employees) engaged by the Supplier for carrying out any processing activities on behalf of the Customer in respect of the Protected Data.
   • Supplier: Nomical Limited (company number: 06035958), and any successor or assignee thereof.
   • Supplier Personnel: means all employees, officers, staff, other workers, agents and consultants of the Supplier who are engaged in the performance of the Managed Services from time to time.
   • Supplier Representative: The individual named in the Managed Services Contract.
   • Supplier Software: means any software owned by the Supplier that is used to provide the Managed Services to the Customer
   • Supplier’s System: The information and communications technology systems to be used by the Supplier in performing the Managed Services, including the Supplier’s reporting system in use from time to time, Hardware and Software and where appropriate those forming part of the Customer Site Equipment and communications links between them which in each case are owned by the Supplier or licensed to it.
   • Support Levels: extent of Support Services (comprising “Proactive”, “Premium”, “Premium+” or “Critical” as the case may be) set out in the Managed Services Contract and selected by the Customer based on the desired coverage appropriate for the Customer.
   • Support Services: the services set out in the Contract, excluding the Excluded Support, and the making of any adjustments to the Supported Devices (excluding replacing any parts) to restore them to Good Working Order.
   • Supported Devices: means the Customer Devices or the Devices (as specified in the Contract) that form the basis on which the Supplier provides Managed Services.
   • TUPE: The Transfer of Undertakings (Protection of Employment) Regulations 2006 as amended by the Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 2014.
2. Controller, Data Subject, Personal Data, Processor and processing shall have the respective meanings given to them in applicable Data Protection Laws from time to time (and related expressions, including process, processed, and processes shall be construed accordingly) and international organisation and Personal Data Breach shall have the respective meanings given to them in the GDPR.
3. Clause, schedule and paragraph headings shall not affect the interpretation of this Contract.
4. Words denoting the singular include the plural and vice versa; words denoting any gender include all genders; and words denoting persons include corporations, partnerships, other unincorporated bodies and all other legal entities and vice versa.
5. Where the words “includes” or “including” are used the words “without limitation” shall be deemed to be inserted after them and use of the words “other” or “otherwise” shall not be construed as limiting any preceding wording.
6. It is not intended to confer any benefit on any person who is not a party to this Contract by virtue of the Contracts (Rights of Third Parties) Act 1999.

2. Application of conditions

1. A binding contract shall not come into existence between the Supplier and the Customer unless and until both parties sign the Managed Services Contract and / or the Customer signs the Quotation, or the Supplier delivers the Devices to the Customer (whichever occurs earlier).
2. These Conditions shall apply to and be incorporated in the Contract and shall prevail over any inconsistent terms or conditions implied by law, trade custom, practice or course of dealing. Each Quotation accepted by the Customer and each Managed Services Contract that is executed by both parties shall be subject to these Conditions. The Customer shall ensure that its Quotation is complete and accurate.
3. No addition to, variation of, exclusion or attempted exclusion of any term of the Contract shall be binding on the Supplier unless in writing and signed by a duly authorised representative of the Supplier.
4. Where the terms set out in the Quotation are inconsistent or conflict with these Conditions, the terms of the Quotation shall prevail and shall act to vary the inconsistent part of these Conditions.
5. To the extent a Contract consists of a Quotation, the Managed Services Contract and these Conditions, in the event of any conflict or inconsistency, the following order of precedence shall apply:
   1. Quotation (excluding the Initial Quotation)
   2. Managed Services Contract
   3. Initial Quotation
   4. these Conditions
6. Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Supplier shall be subject to correction without any liability on the part of the Supplier.

3. Ordering managed services

1. In response to a request by the Customer, the Supplier will prepare and send to the Customer a Quotation. If the Customer wishes to contract with the Supplier to provide the Managed Services set out in that Quotation, it will indicate its acceptance of the Quotation by signing it and returning a signed copy to the Supplier, whereupon the Contract for the Managed Services set out therein will come into existence.
2. The parties may also conclude a contract for the Managed Services without an Initial Quotation upon execution by both parties of a Managed Services Contract.
3. Depending on the nature of the Managed Services, the Customer recognises that it may be necessary for the Supplier to perform additional preparatory design or specification work before proceeding to installation, implementation, provisioning and/or “go live”. This will be set out in the Quotation or Managed Services Contract as applicable.
4. The Supplier will provide to the Customer upon completion of that additional preparatory work details setting out how the Managed Services will be provided. The Customer may request reasonable changes to the Managed Services during the preparatory phase, and the Supplier will use reasonable efforts to accommodate such changes within the scope of the Fees set out in the Quotation, failing which the Supplier and the Customer, each acting reasonably, will agree such changes to the Managed Services (including changes to project milestones) and the corresponding Fees as may be required to give effect to the Customer’s request. The Customer will be required to sign a supplementary Quotation to reflect acceptance of the Customer’s requested changes and in the absence of a written indication to the contrary will be deemed to have accepted such supplementary Quotation 7 days after the Supplier sends it to the Customer. Once signed, a supplementary Quotation forms part or supersedes the initial Quotation as the case may be (and, therefore, forms part of the Contract) in respect of the relevant Managed Services.
5. Following acceptance of the Quotation (including, where applicable, any supplementary Quotation), the Supplier will provide the Customer with a provisional Activation Date for each of the ordered Managed Services. The Supplier will use reasonable efforts to begin delivering the relevant Managed Services by such provisional Activation Date, subject to payment by the Customer of any Fees which are payable in advance. Time shall not be of the essence in this regard and the Customer acknowledges that the actual Activation Date may differ.
6. No order which has been accepted (signed Quotation) may be cancelled by the Customer unless written agreement is obtained from an authorised representative of the Supplier. The Customer shall remain liable for and shall indemnify the Supplier in full for any costs, damages, losses, charges and expenses incurred by the Supplier as a result of any cancellation of an order.
7. If the Supplier has agreed with the Customer that any Fees will be payable in arrears, the delivery of the Managed Services is subject to credit approval at the beginning of the Initial Term.
8. The Customer acknowledges that the Supplier provides, and prices, Managed Services only on the basis of this Contract and agreed Quotations. No other terms will apply, regardless of the form or timing of delivery.

4. Delivery

1. The Supplier shall use its reasonable endeavours to deliver Devices or equipment to the premises stated in the Quotation and to supply the Managed Services by any delivery date estimated by the Supplier and for the avoidance of doubt the Customer acknowledges that such delivery date is not guaranteed nor shall time be of the essence in relation to such delivery date. The Supplier shall in no circumstances be liable to the Customer for any losses, damages or charges incurred by the Customer due to such late delivery.
2. The Customer agrees that it will inspect the Devices or equipment immediately upon the earlier of delivery or collection and in all cases shall inform the Supplier in writing within forty eight (48) hours of delivery of any damage, shortages, defects or non-delivery and any failure to do so shall be deemed to constitute acceptance by the Customer of the Devices or equipment.
3. If the Customer fails to take delivery of or, where agreed, collect the Devices or equipment or fails to give the Supplier adequate delivery instructions at the time stated for delivery (save for circumstances beyond the Customer’s reasonable control or by reason of the Supplier’s fault) then without prejudice to any other rights or remedies available to it, the Supplier may at its sole discretion:
   1. store the Devices or equipment until actual delivery and charge the Customer for the reasonable costs (including insurance) of storage and any re-delivery of the Devices or equipment; or
   2. if the Customer fails to take the re-delivery pursuant to clause 4.3(a), sell the Devices or equipment at the best price readily available and charge the Customer any shortfall below the price obtained.
4. The Customer must provide reasonable access and assistance to the Supplier’s staff for the purpose of enabling the Supplier’s staff or officers or agents or subcontractors to fulfil their duties (including delivery). Such access shall be during Business Hours unless specifically agreed otherwise.
5. All spare parts and/or replacements provided by the Supplier to the Customer in repairing Supported Devices shall become part of the Supported Devices.

5. Risk and Title

1. The Devices purchased by the Customer shall be at the risk of the Supplier until delivery or collection, when the risk shall pass in full to the Customer. Ownership title of the Devices shall pass to the Customer on the later of completion of delivery or collection, or when the Supplier has received in full, cleared funds of all sums due to it in respect of the Devices.
2. The Customer’s right to possession of the Devices, before title has passed to it, shall terminate immediately if any of the circumstances set out in clause 25 arise or if the Supplier encumbers or in any way charges the Devices, or if the Customer fails to make any payment to the Supplier on the due date.
3. Until title in the Devices has passed to the Customer, the Supplier may at any time require the Customer to return it and if the Customer fails to do so promptly, enter any premises of the Customer in order to recover it.

6. Returns Policy

1. The Supplier normally allows Customers to return unopened items within 30 days of delivery, however all returns are at the Supplier’s sole and absolute discretion and will depend on third-party supplier returns policies.
2. Under no circumstances will the Supplier accept returns of opened items unless those items are faulty and the provisions of the remainder of this clause 6 are met.
3. In circumstances where return of items is permitted by the Supplier, it will issue a credit note on a Customer’s account so that the invoice for the relevant item is deemed cancelled. In the event a Customer has paid for goods in full, a refund will be granted.
4. The refund or replacement of faulty or defective items is subject strictly to individual manufacturer’s warranty or manufacturer’s “Dead On Arrival” (“DOA”) policies.
5. In the case where it is established that items are faulty or defective, the Supplier will arrange with the Customer to have the items collected. In some instances, the manufacturer’s warranties require the Customer to contact the repair agent directly. If this is the case, the Customer will be so informed by the Supplier.
6. Where the Supplier has indicated to the Customer that the return of an item is permitted, the Customer is responsible for ensuring that the items are returned to the Supplier in their original packaging together with all disks, manuals, cables and any other peripherals, accessories, consumables and other parts or items with which they were boxed or inseparably supplied so as to ensure satisfaction of the manufacturer’s DOA policy and/or warranty stipulations (as appropriate), safe transit and ease of identification.
7. The external packaging must not be damaged or defaced so it is recommended the goods are re-boxed for transport.
8. The items will be tested on receipt. If no fault is found the items shall be returned to the Customer at the Customer’s cost.
9. If a fault is found and an applicable manufacturer’s DOA period is exceeded, then the items will be repaired and/or replaced under the terms of the manufacturer’s warranty, to the extent that such warranty remains in force at that time.
10. In the event that the manufacturer’s DOA cover period and/or warranty period have expired or did not apply, the Supplier shall have no liability to the Customer for such items.
11. If software licences are provided to the Customer as part of the Managed Services these will be subject to the end user licence terms as between the Customer and the applicable third-party provider.

7. Consultancy Services and Deliverables

1. The scope of any Consultancy Services to be performed by the Supplier shall be as specified in the Contract. The Customer may from time to time wish to vary the scope. Under these circumstances, the Supplier will use reasonable commercial endeavours to accommodate that variation. Any changes in the Fees and/or timescales as a result of that variation shall be agreed between the parties and set out in a Quotation. .
2. Any estimate or indication by the Supplier as to the number of man days or man hours required by the Supplier to undertake a specific task shall be construed as being an estimate only. The Supplier shall in no circumstances be liable for a delay or for any other loss, damage or other cost of whatsoever nature suffered or incurred by the Customer where such estimate or indication is incorrect.
3. Where reports, whether of an ongoing progress update nature or on completion of the Consultancy Services, are to be provided in accordance with the Contract, the Supplier shall render such reports at the time and in the manner specified in the Contract or as otherwise agreed in writing between the Supplier and the Customer.
4. The Supplier expects that the Customer will provide any and all relevant assistance and information (which shall include sufficient detail in that information) pertaining to the undertaking and completion of such Consultancy Services, and the Supplier shall not be liable for any advice, conclusions or reports which are erroneous or incomplete as a result of a failure to supply such information.
5. The Fees for Consultancy Services do not include travel, accommodation and subsistence expenses, unless stated otherwise.

8. Managed Services and Support Services

1. Where the Supplier agrees to provide Managed Services to the Customer, the Customer shall at its own expense during and prior to the delivery of those Managed Services comply with the Supplier’s reasonable requests in order to allow the Supplier to provide those Managed Services.
2. Upon the Customer informing the Supplier that the Supported Devices or the Managed Services are malfunctioning or have failed or are otherwise not in Good Working Order, the Supplier shall use reasonable endeavours to provide the Support Services in accordance with the terms of the Contract. Reasonable endeavours shall take into consideration that in exceptional circumstances, there may be sites that are physically located either outside of the UK or located in difficult to reach areas.
3. Support Services can be accessed through the Supplier’s dedicated support phone line (call routing to the case owner or the relevant incident team) or via e-mail. It should be noted that the Customer must report an incident assessed by the Customer with reference to the Service Level Schedule contained in either the Managed Services Contract or Quotation to have a “Urgent” or “Urgent” business impact via telephone only. The Supplier cannot offer any Service Levels for “Urgent” or “Urgent” business impact incidents reported via email and for incidents that occur outside of supported hours (as specified in the Contract) and for which its monitoring systems, with the agreement of the Customer, have not been set up to detect.
4. All Support Services requests or reports of incidents will be recorded on the Supplier’s system for case management, including the name of the person, time of call and any other pertinent information, along with details of impact of any incident on the Customer.
5. The Supplier shall not be obliged to carry out any Excluded Support and where it does so it shall not be required to meet the Service Levels but is entitled to charge the Customer in accordance with any Quotation issued in respect of the Excluded Support which in this case may be after the incident has been resolved.
6. The Fees for Support Services do not include travel, accommodation and subsistence expenses, unless stated otherwise.
7. The Supplier will normally carry out the Managed Services during Business Hours (unless agreed otherwise) but may, on reasonable notice, require the Customer to provide access to the Customer’s premises at other times.
8. At the Customer’s request, the Supplier may agree to work outside of Business Hours, however this shall be subject to any reasonable additional Fee that may be charged by the Supplier for complying with such request. Such Fees shall be agreed in writing prior to commencement of any out of hours work.
9. All personnel required for the Managed Services will be provided by the Supplier and will be facilitated wherever appropriate and/or possible by use of the Customer’s own staff. However, the Supplier reserves the right to sub-contract the whole or any part of the Contract to any person or company.
10. The Supplier expects that the Customer has adequate inspection, testing and approval processes and, on completion of any Managed Services provided by the Supplier, the approval by the Customer of such services shall be considered the Customer’s acceptance of the satisfactory completion of such Managed Services.

9. Service Levels

1. Any applicable Service Levels shall apply with effect from the start of the first complete month occurring after the Activation Date.
2. The Service Levels are administered on the basis of response times per Supported Device categories and are as set out in a Quotation or Managed Services Contract (including servers, network devices and workstations) which may include Customer Site Equipment. The Service Levels shall apply to the Managed Services providing that, the Customer ensures they:
   1. report to the Supplier, issues or problems with Supported Devices, Software or Managed Services at the earliest opportunity;
   2. provide the Supplier with access to Supported Devices, Software and Managed Services for the purpose of maintenance, updates, fault prevention and fault diagnosis;
   3. provide the Supplier with as much detailed information in relation to the incident or case, to assist the Supplier in providing a quick fault diagnosis and resolution;
   4. provide the Supplier with information in relation to any changes to the Customer’s Site Equipment or general computing environment in a timely manner;
   5. maintain good communication with the Supplier’s team at all times;
   6. communicate any issues or concerns to the Supplier Representative at the earliest opportunity so that resolutions can be achieved and service excellence maintained;
   7. ensure that all fee invoices are paid in accordance with the agreed payment terms; and
   8. provide the Supplier with approvals for any relevant Quotations in a timely manner.
3. The Customer is responsible for the use to which it puts the Managed Services under its control, including any use by third-parties (whether fraudulent or invited by the Customer). In particular, the Customer acknowledges that the Managed Services are not designed to be used in circumstances outside the scope of the Contract or otherwise in which errors or failures in the Managed Services could lead to death, personal injury or severe physical or environmental damage.
4. The Customer shall not provide the Managed Services to third-parties or permit any third-party to access or benefit from the Managed Services, nor to access the Devices, unless otherwise expressly agreed to in writing by the Supplier.
5. The Supplier reserves the right to:
   1. modify the Supplier’s System, its network, system configurations or routing configuration; or
   2. modify or replace any Hardware or Software in its network or in equipment used to deliver any Managed Services over its network, provided that so doing will have no material adverse effect on either Party’s ability to perform its obligations under the Contract. If such changes will have a material adverse effect, the affected Party will notify the other and the Parties will follow the Change Control Procedure.
6. If a Managed Service to be delivered by the Supplier is no longer readily available or is in short supply at the agreed time of delivery, the Supplier may substitute another product or service in its place. The substituted product will have equivalent or better performance and functionality.
7. If the Customer uses a Managed Service or requires the Supplier to implement or configure a Managed Service, in a manner contrary to the Supplier’s reasonable recommendations, the Supplier’s obligation to provide that Managed Service will be limited to reasonable endeavours.
8. Time shall not be of the essence in respect of the delivery of the Managed Services.

10. Reporting

1. The Supplier will provide monthly reporting to the Customer, via its then reporting system, including Service Levels achieved against KPIs detailed in the Managed Services Contract or Quotation as well as the following (based on the Customer’s estate):
   1. asset management
      1. warranty status
      2. asset licenses
      3. cloud licenses
   2. patch status
      1. servers
      2. workstations
   3. anti-virus status
      1. engine versions
      2. virus definition versions
   4. cases (tickets)

11. Customer Obligations

1. To assist the Supplier to fulfil its obligations under the Contract, the Customer will:
   1. carry out its responsibilities to the Supplier in a timely and efficient manner.
   2. provide the Supplier promptly with any information and assistance it may reasonably require from time to time;
   3. where relevant, properly train, supervise and manage its personnel in the use and application of the Managed Services;
   4. afford the Supplier full and safe access to Customer Sites, Customer Site Equipment and Supported Devices during Business Hours or as otherwise specified in the Managed Services Contract or Quotation;
   5. use, and procure that its officers, employees, workers and subcontractors use the Managed Services only in accordance with relevant operating manuals;
   6. ensure that Customer Site Equipment and Supported Devices are installed and kept in suitable premises and under suitable conditions, permit only trained and competent personnel to use them and follow any operating instructions as the Supplier or third-party vendors may give from time to time;
   7. not allow any person other than the Supplier to maintain, alter, modify or adjust the Customer Site Equipment and Supported Devices without the prior written approval of the Supplier;
   8. only use supplies or materials supplied or approved by the Supplier;
   9. where applicable, install the correct management agents on the Customer’s Site Equipment and Supported Devices, or if the Supplier installs management agents as part of the Managed Services, not interfere with such management agents;
   10. provide the Supplier with copies of all policies that the Supplier is expected to observe at the Customer Sites;
   11. appoint a Customer Representative who will be the Supplier’s primary contact at the Customer and who must have or promptly be able to obtain sufficient authority to make all necessary decisions in relation to the Contract. The Customer will use reasonable endeavours to ensure continuity of the Customer’s Representative;
   12. ensure that the Managed Services are not used to receive, transmit, host or otherwise process any material and/or communication (other than entirely unsolicited inbound communications) that is menacing, of a junk-mail or spam-like nature, illegal, obscene, threatening, defamatory, discriminatory, actionable, or in violation of (or which would place the Supplier in violation of) any rules, regulations or laws to which the use of the Managed Services are subject, or infringe the Intellectual Property Rights of the Supplier or any third-party;
   13. ensure that the performance or operation of any Customer developed or installed applications have no direct impact upon the Supplier’s ability to deliver the agreed Managed Services and informs the Supplier of any new applications and or services that may affect the provision of the Managed Services and ensure that such applications or services are licensed and compliant;
   14. implement effective and appropriate backup and other procedures for the protection of its data where backup and restore services are not part of the Managed Services; and
   15. comply with all applicable laws and regulations with respect to its activities under the Contract;
2. If the Customer wishes to make any alterations, additions, or maintenance that will or may impact upon the Supplier’s ability to deliver the Managed Services, then the Customer will inform the Supplier in writing of such works prior to their commencement.
3. In the event the Customer fails to meet any of the obligations specified above, the Supplier may adjust any timetable or delivery schedule as reasonably necessary;

12. Supplier’s Obligations

1. The Supplier shall use reasonable endeavours to ensure that the Managed Services are performed:
   1. by an appropriate number of suitably qualified and experienced personnel;
   2. using all reasonable skill and care; and
   3. in accordance with all applicable laws and regulations in force from time to time.
2. All Devices, and services supplied or used in the course of the provision of the Managed Services shall operate in accordance with their technical specifications.
3. In the event that the Customer, or any third-party who is not a sub-contractor of the Supplier, omits or commits anything that prevents or delays the Supplier from undertaking or complying with any of its obligations under the Contract, then the Supplier shall notify the Customer as soon as possible and the Supplier will have no liability in respect to any delay in the provision of the Managed Service that results from such act or omission.

13. Fees and Payment of Invoices

1. All Fees shall be as stated in the Contract. Unless stated otherwise, all Fees are exclusive of delivery, packaging, insurance, VAT and duties.
2. Until the Contract comes into effect, all Fees are subject to change without prior notice.
3. Where a Fee is in a currency other than pounds sterling, the price provided to the Customer in a Quotation in pounds sterling is based on the currency exchange rates (including any applicable third-party commissions for currency conversion) on the day of that Quotation, and is given by way of convenience only and is subject to currency fluctuation. The sum in pounds sterling to be paid by the Customer will be calculated on the day that the foreign denominated transaction is paid based on the currency exchange rates applicable on that day (with any relevant third-party commissions for currency conversion to be added), and that price calculated will become automatically binding at that time.
4. Applicable third-party licensing and support costs will be payable at initial purchase and any subsequent renewal dates in line with the terms provided by the third-party and will be specified in a Managed Services Contract or Quotation (as applicable).
5. When the Customer first orders a Device or Managed Service, or it is agreed by the Parties as being either an addition to, or change to an existing Managed Service being supplied, then a non-recurring charge may be specified as part of the Fees. This non-recurring charge may be for consultancy, installation, configuration, call-out or similar services. Non-recurring Fees are payable by the Customer after delivery of the relevant Managed Service and will be billed in arrears. If the Customer fails to pay such non-recurring Fees within thirty (30) calendar days following the Supplier’s invoice for such non- recurring Fees, then:
   1. the Supplier may issue a revised Contract Start Date and/or Activation Date; and
   2. the Supplier may suspend installation or provision of the Managed Service until receipt of such non-recurring Fees.
6. All invoices must be paid within thirty (30) calendar days of the date of the invoice. The Supplier reserves the right to charge interest at four percent (4%) per annum above the Bank of England base rate. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount. The Customer shall pay the interest together with the overdue amount.
7. The Customer shall not be entitled to make a set-off or counter-claim or claim a lien in respect of any amounts owed by the Supplier and shall pay all amounts due without making a deduction of any kind.
8. If the Customer reasonably disputes any portion of an invoice, the Customer must submit a written claim for the disputed amount within fourteen (14) calendar days of the relevant invoice date and shall at all times remain liable for the payment of all items not disputed or not validly disputed. Where such dispute relates to the level of usage of the Managed Services, the Supplier records of such usage shall be presumed to be accurate unless proved otherwise or is contrary to the Customer’s requirement as stated in the Contract.
9. The Customer waives the right to dispute any Fees not disputed within fourteen (14) days of the relevant invoice date.
10. When a dispute regarding amounts payable under the Contract is resolved to the Customer’s reasonable satisfaction, the Customer will immediately pay any amounts that were the subject of such dispute.
11. If an invoice becomes overdue, the Supplier may give the Customer notice in writing that it intends to suspend the Managed Services. If any invoice remains overdue for 5 Business Days after such notice has been provided, the Supplier may without prejudice to any other rights, suspend the Managed Services including disconnecting any part thereof without any liability whatsoever to the Customer.
12. The Customer acknowledges that the Fees chargeable in respect of certain Managed Services (for example, Amazon Web Services (AWS), VMware vCloud Hybrid Service (vCHS), backup and Session Initiation Protocol (SIP) per-minute billing) are based on the Customer’s actual usage, and that the level of usage of such Managed Services is controlled by the Customer and the Customer’s use of such Managed Services are subject to the third party software providers’ end user terms. The Customer therefore agrees in respect of such Managed Services to pay such Fees as the Customer may incur as a result of its actual usage, without the requirement for any additional Quotation. The Customer further acknowledges that fees charged by the upstream suppliers of certain Managed Services will vary from time to time during the Initial Term and Renewal Term. The Customer therefore agrees that the Supplier may vary the Fees to reflect such changes in upstream fees. The Supplier will use reasonable endeavours to provide reasonable notice of such variations.
13. All sums payable to the Supplier under the Contract shall become due immediately on its termination, regardless of any other provisions of the Contract.
14. The Supplier reserves the right, by giving notice to the Customer, to increase the Fees of the Managed Services, or of such of the Devices that have not yet been delivered, to reflect any increase in the cost to the Supplier which is due to any factor beyond the control of the Supplier (including without limitation any alteration of duties, change in legislation, significant increase in the costs of labour, materials, software licences, utilities or other costs of manufacture and supply), any change in delivery dates, quantities or specifications for the Managed Services or Devices which are 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.
15. The Customer acknowledges that the Fees are subject to general increases caused by, among other things, increases in upstream supplier charges and general inflation, and that subject to clause 13.14 the Supplier may therefore vary the Fees payable by the Customer in respect of Renewal Terms by no more than the increase in the UK RPI calculated over the preceding twelve (12) months unless the Supplier can demonstrate that its costs in providing such Managed Services have unavoidably increased by a sum exceeding that figure. Forty five (45) days before the expiry of the Initial Term and each Renewal Term thereafter, the Supplier will notify the Customer of any adjustment in the Fees payable for the subsequent Renewal Term.

14. Software and End User Licence Arrangements

1. If the Supplier specifies the inclusion of a software licence in the Quotation or a Managed Services Contract, the Fee for the Device or Managed Service will include the licence fee for the Customer’s right to use the Software.
2. Where the Supplier provides to the Customer access to or use of third-party Software in the course of providing the Managed Services, the Customer agrees to comply with the terms of the relevant end user licence agreements applicable to such Software. Where required by an upstream supplier of such Software, the Customer agrees to provide to such upstream supplier sufficient access to relevant systems and records to allow such upstream supplier to verify compliance with such end user licence agreements. The Customer agrees to indemnify the Supplier against any losses arising from the Customer’s failure to comply with any third-party software licence.
3. The Supplier maintains a central record of licences supplied by it under the Contract and will provide copies of any such licences on request from the Customer.
4. The Customer may need to contract directly with a third-party supplier for provision of certain software or services. Unless managing such contracts falls within the scope of the Managed Services as specified in the Contract, the Customer will be solely responsible for all matters arising out of such contracts.

15. Change control

1. The Customer acknowledges that operational or technical changes to services such as the Managed Services must be carefully managed. Therefore, if either Party wishes to change the operational or technical scope of any of the Managed Services (including Customer requests for additional services), it shall submit a change request to the other Party in the form set out in the Managed Services Contract and the Parties will then proceed according to the Change Control Procedure.
2. If either Party requests a change to the scope or execution of the Managed Services, the Supplier shall issue a Quotation providing a written estimate to the Customer of:
   1. the likely time required to implement the change;
   2. any variations to the Supplier’s Fees arising from the change; and
   3. any other impact of the change on the terms of the Contract.
3. If the Supplier requests a change to the scope of the Managed Services, the Customer shall not unreasonably withhold or delay consent.

16. Warranty Management

1. Unless the Contract specifically sets out a warranty management service, where a Device is covered by a manufacturer’s warranty, all claims under that warranty will be made directly to the manufacturer. Where a contract for Managed Services remains in force between the Parties, the Supplier will provide reasonable assistance to the Customer in claiming under the warranty from the manufacturer.
2. The Supplier shall not in any circumstances be liable for any damage or defect to the Devices caused by improper use of the Devices or use outside its normal application.

17. Intellectual Property Rights

1. Nothing in the Contract will change the ownership of any of the Intellectual Property Rights of either Party in existence prior to the Contract Start Date.
2. All Intellectual Property Rights and all other rights in the Managed Services and the Supplier’s System shall be owned by the Supplier or its licensors. For the duration of this Contract, the Supplier hereby licenses such rights to the Customer free of charge and on a non-exclusive, non-transferable, revocable, worldwide basis (and in the case of any third party Intellectual Property Rights, on the terms specified in any end user licence terms) to such extent as is necessary to enable the Customer to make reasonable use of the Managed Services as is envisaged by the Parties.

18. Security

1. The Supplier will operate safety and security measures and procedures consistent with Good Industry Practice for the prevention of unauthorised access or damage to any and all Managed Services.
2. Each of the Supplier and the Customer will promptly inform the other if it suspects or uncovers any breach of security in respect of the Managed Services, and the Supplier will use all commercially reasonable endeavours to verify, and if verified, promptly remedy such breach.

19. Customer Data and Disaster Recovery

1. The Customer acknowledges that certain risks, such as data loss, are an inherent part of using services such as the Managed Services. The Supplier can, where agreed with the Customer in the Contract, provide backup and restore services as part of the Managed Services, which can form part of a Customer’s wider business continuity and recovery strategy. However, the Supplier does not provide general business continuity planning and execution services. Business continuity planning, and the execution and testing of such plans, is the responsibility of the Customer, and the Customer acknowledges that the Supplier is assisting the Customer as specified in the Contract and the Supplier’s backup and restore services are not a complete substitute for such arrangements. The Supplier will only perform backup and restore services if they form part of the Managed Services and are specified in the Contract (“Back up and Restore Services”).
2. The Supplier will perform the Back up and Restore Services in accordance with Good Industry Practice. However, the Customer acknowledges that:
   1. the Supplier is not in a position to develop, evaluate or test the Customer’s wider business continuity or disaster recovery arrangements, and can only provide such backup and recovery services as form part of the contracted Managed Services, and the selection and testing of appropriate backup and recovery solutions and strategies is therefore the Customer’s responsibility;
   2. the Supplier is not in a position to verify the accuracy, completeness or integrity of the Customer Data, and can only back up the Customer Data as of its then-current state. Therefore, the Supplier will not be liable if any Customer Data backed up or restored by the Supplier is inaccurate, incomplete or corrupted, provided that the restore and corresponding backup procedure is completed without error; and
   3. the Supplier will only be liable for any loss of or damage to Customer Data which arises from the provision by the Supplier of Back up and Restore Services. In this event the Supplier shall restore the Customer Data to the last available back up and this shall constitute the Customer’s sole and exclusive remedy in this respect.
3. Notwithstanding clause 19.1, the Supplier will not itself delete any Customer Data unless specifically permitted to do so as part of the Contract or instructed to do so by the Customer.
4. In the event the Supported Devices, or any other Hardware and Software must be replaced in the course of a disaster recovery, the Supplier can provide reasonable assistance in doing so, and will provide such services on request, but all replacement, relocation or reinstallation costs in respect of all such items of Hardware and Software will otherwise be borne by the Customer.

20. Data Protection

1. The parties agree that the Customer is a Controller and that the Supplier is a Processor for the purposes of processing Protected Data pursuant to this Contract. The Customer shall at all times comply with all Data Protection Laws in connection with the processing of Protected Data. The Customer shall ensure all instructions given by it to the Supplier in respect of Protected Data (including the terms of this Contract) shall at all times be in accordance with Data Protection Laws.
2. The Supplier shall process Protected Data in compliance with the obligations placed on it under Data Protection Laws and the terms of this Contract.
3. The Customer shall indemnify and keep indemnified the Supplier against all losses, claims, damages, liabilities, fines, sanctions, interest, penalties, costs, charges, expenses, compensation paid to Data Subjects, demands and legal and other professional costs (calculated on a full indemnity basis and in each case whether or not arising from any investigation by, or imposed by, a supervisory authority) arising out of or in connection with any breach by the Customer of its obligations under this clause 20.
4. Clauses 20.5(b), 20.8, 20.10 and 20.11 shall apply from when the GDPR applies on 25 May 2018, but not earlier.
5. The Supplier shall:
   1. only process (and shall ensure Supplier Personnel only process) the Protected Data in accordance with the data privacy schedule set out in the Managed Services Contract or Quotation (and not otherwise unless alternative processing instructions are agreed between the parties in writing) except where otherwise required by applicable law (and shall inform the Customer of that legal requirement before processing, unless applicable law prevents it doing so on important grounds of public interest); and
   2. without prejudice to clause 20.1, if the Supplier believes that any instruction received by it from the Customer is likely to infringe the Data Protection Laws it shall promptly inform the Customer and be entitled to continue providing the relevant Services as they were provided before such instruction until the parties have agreed appropriate amended instructions which are not infringing (unless continuing to provide the Services would cause the Supplier to infringe the Data Protection Laws).
6. Taking into account the state of technical development and the nature of processing, the Supplier shall implement and maintain the technical and organisational measures set out in Schedule 1 to protect the Protected Data against accidental, unauthorised or unlawful destruction, loss, alteration, disclosure or access.
7. The Supplier shall:
   1. not permit any processing of Protected Data by any agent, subcontractor or other third party (except its own employees, its Sub-Processors, or its Sub-Processors’ own employees in the course of their employment that are subject to an enforceable obligation of confidence with regards to the Protected Data) without the written authorisation of the Customer;
   2. prior to the relevant Sub-Processor carrying out any processing activities in respect of the Protected Data, appoint each Sub-Processor under a written contract containing materially the same obligations as under this clause 20 that is enforceable by the Supplier and ensure each such Sub-Processor complies with all such obligations;
   3. remain liable to the Customer under this Contract for all the acts and omissions of each Sub-Processor as if they were its own; and
   4. ensure that all persons authorised by the Supplier or any Sub-Processor to process Protected Data are subject to a binding written contractual obligation to keep the Protected Data confidential.
8. The Supplier shall (at the Customer’s cost):
   1. assist the Customer in ensuring compliance with the Customer’s obligations pursuant to Articles 32 to 36 of the GDPR (and any similar obligations under applicable Data Protection Laws) taking into account the nature of the processing and the information available to the Supplier; and
   2. taking into account the nature of the processing, assist the Customer (by appropriate technical and organisational measures), insofar as this is possible, for the fulfilment of the Customer’s obligations to respond to requests for exercising the Data Subjects’ rights under Chapter III of the GDPR (and any similar obligations under applicable Data Protection Laws) in respect of any Protected Data.
9. The Supplier shall not process and/or transfer, or otherwise directly or indirectly disclose, any Protected Data in or to countries outside the United Kingdom and European Economic Area or to any international organisation without the prior written consent of the Customer.
10. The Supplier shall, in accordance with Data Protection Laws, make available to the Customer such information that is in its possession or control as is necessary to demonstrate the Supplier’s compliance with the obligations placed on it under this clause 20 and to demonstrate compliance with the obligations on each party imposed by Article 28 of the GDPR (and under any equivalent Data Protection Laws equivalent to that Article 28), and allow for and contribute to audits, including inspections, by the Customer (or another auditor mandated by the Customer) for this purpose (subject to a maximum of one audit request in any 12 month period under this clause 20.10).
11. The Supplier shall notify the Customer without undue delay and in writing on becoming aware of any Personal Data Breach in respect of any Protected Data.
12. At the end of the provision of the Managed Services relating to the processing of Protected Data, at the Customer’s cost and the Customer’s option, the Supplier shall either return all of the Protected Data to the Customer or securely dispose of the Protected Data (and thereafter promptly delete all existing copies of it) except to the extent that any applicable law requires the Supplier to store such Protected Data. This clause 20 shall survive termination or expiry of this Contract.

21. Confidentiality

1. Each Party undertakes to the other that, unless authorised in writing by the other, it shall, at all times:
   1. keep confidential all Confidential Information disclosed to it by the other Party;
   2. not disclose any such Confidential Information to any other person;
   3. not use any such Confidential Information for any purpose other than as contemplated by the Contract; and
   4. ensure that none of its directors, officers, employees, agents or advisers does any act which, if done by that party, would be a breach of this clause.
2. The Customer acknowledges that the Supplier’s Confidential Information includes any designs, plans, software or other materials created by the Supplier in connection with the Managed Services.
3. The Supplier acknowledges that the Customer’s Confidential Information includes the Customer Data.
4. Notwithstanding clause 21.1, either Party may disclose the Confidential Information of the other to:
   1. any sub-contractor, supplier or professional adviser of that Party;
   2. any governmental or other authority or regulatory body; or
   3. any employee or officer of that Party, or of any of the aforementioned persons, in each case only to such extent as is necessary for the purposes of performing or enforcing the Contract, or as required by law, and in each case (unless prohibited by applicable law) subject to that Party first informing the person in question that the Confidential Information is confidential and (except where the disclosure is to any such body as is mentioned in clause 21.4(b) above or any employee or officer of any such body) obtaining and submitting to the other party a written undertaking from the person in question, as nearly as practicable in the terms of this clause, to keep the Confidential Information confidential and to use it only for the purposes for which the disclosure is made.
5. The provisions of this clause 21 shall continue for a period of 2 years following the termination or expiry of the Contract for any reason.

22. Warranties

1. The Supplier warrants that:
   1. it will provide the Managed Services in accordance with Good Industry Practice and substantially in accordance with the Contract;
   2. it has the full capacity and authority to enter into and perform the Contract and that the Contract is executed by a duly authorised representative of the Supplier;
   3. it will comply with all applicable laws in providing the Managed Services under the Contract;
   4. the Customer’s use of the Supplier Software in connection with the Contract shall not cause the Customer to infringe the rights, including any Intellectual Property Rights, of any third party.
   5. all personnel used by the Supplier in the performance of the Contract are 
adequately skilled and experienced for the activities they are required to perform.
2. The warranties in clause 22.1 shall not apply to the extent of any non-conformance caused by use of the Managed Services contrary to the Supplier’s instructions.
3. Subject to clause 22.1, all other conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into this Contract, whether by statute, common law or otherwise, are hereby excluded, including the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose or the use of reasonable skill and care.
4. If the Managed Services do not conform with any of the warranties in clause 22.1 as a result of a breach by the Supplier of such warranty, the Supplier will use reasonable commercial endeavours to correct such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the warranties in clause 22.1.
5. The Supplier does not warrant that the Customer’s use of the Managed Services will be uninterrupted or error-free.
6. The Customer warrants that:
   1. it has the full capacity and authority to enter into and perform the Contract and that the Contract is executed by a duly authorised representative of the Customer;
   2. it has the authority to grant any rights granted to the Supplier under the Contract;
   3. it will comply with and use the Managed Services in accordance with the Contract and all applicable laws;
   4. it has and shall maintain all necessary licences, permits, rights, consents, registrations, approvals and titles necessary for the Supplier to use or host any software, hardware, documentation or other materials provided by the Customer for use in the provision of the Managed Services to the Customer; and
   5. the Supplier’s use of any data or materials supplied by the Customer (or any third party) in connection with the Contract, shall not cause the Supplier to infringe the rights, including any Intellectual Property Rights, of any third party.

23. Suspension

1. The Supplier may suspend all or any part of the Managed Services without liability to the Customer if:
   1. the Supplier reasonably believes that the Managed Services have, are or will be used in breach of the Contract;
   2. the Supplier discovers that the Customer is affiliated in any manner with a person who has used similar services abusively in the past;
   3. the Customer does not co-operate with the Supplier’s investigation of any suspected breach of the Contract;
   4. the Supplier reasonably believes that the Customer has permitted the Managed Services to be accessed or manipulated by a third party without its consent;
   5. the Supplier reasonably believes that Customer applications, databases or operating systems hosted on the Managed Services have been hacked or compromised, except where such hack or compromise is reasonably attributable to the Supplier’s failure to perform its obligations under the Contract;
   6. the Supplier reasonably believes that suspension of the Managed Services is necessary to protect the Supplier’s System or the Supplier’s other customers;
   7. any Fee or other amount due under the Contract is overdue or is at risk of non-payment in the opinion of the Supplier; or
   8. the Supplier is required to do so by law or a regulatory or government body.
2. If the Supplier suspends any Managed Services pursuant to clause 23.1(e) then the Customer must address the underlying vulnerability prior to the Supplier placing the Managed Services back in service. If the Customer requests, the Supplier may be able to perform this work for the Customer as a supplementary service on a time and materials basis.
3. Except in relation to non-payment of fees, as specified in clause 13.11, the Supplier will give the Customer advance notice of a suspension under this clause of at least twelve (12) Business Hours unless the Supplier determines in its reasonable commercial judgment that a suspension on shorter or contemporaneous notice is necessary to protect the Supplier or its other customers from imminent and significant operational, legal, or security risk. If the Supplier suspends any Managed Services pursuant to clause 23.1, then the Supplier may charge the Customer a reasonable reinstatement fee upon reinstatement of the Managed Services.

24. Limitation of liability

1. Except as expressly and specifically provided in the Contract: 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;
2. Nothing in the Contract is intended to or shall be interpreted to exclude or limit the liability of either Party for:
   1. the indemnities expressly given in the Contract;
   2. any liability which cannot lawfully be excluded or limited;
   3. death or personal injury caused by the other party’s negligence; or
   4. fraud or fraudulent misrepresentation.
3. The Supplier will have no liability to the Customer arising out of or in connection with the Contract for any loss of profits, account of profits, loss of business, loss of revenue, loss of reputation or goodwill, loss of opportunity, loss of data (except as specified in clause 19 or otherwise arising pursuant to clause 19), or interference with business, or any indirect or consequential loss of any kind.
4. In particular and without prejudice to the provisions of clause 24.3, the Supplier will not be liable for any loss or damage arising from the Customer’s systems, data, information, equipment or any Intellectual Property Rights if such loss is in any way attributable to any of the following:
   1. any failure of the Customer’s applications, databases or operating systems, including loss or corruption of data (unless and to the extent that backup and restore services are part of the Managed Services) or failure to implement back-up procedures;
   2. any failure of any applicable Service Levels if in the reasonable opinion of the Supplier (based on its knowledge of the industry) the solution / systems have been tampered with by the Customer or any third-party authorised by the Customer with or without the Supplier’s knowledge;
   3. any failure of any Customer-managed third-party supplier to provide its services in accordance with the relevant agreements;
   4. any internet failure outside the control of the Supplier; or
   5. any latent defect in any third-party equipment or Software, or failure of such equipment or Software to perform in accordance with the manufacturer’s specification.
5. Subject to the other provisions of this clause 24, the Supplier’s maximum aggregate liability to the Customer arising out of or in connection with the Contract is, in relation to each event and all events preceding that event (taken together), limited to an amount equal to the Fees paid by the Customer to the Supplier in the 12 months preceding such event.

25. Termination

1. The Supplier may terminate this Contract immediately on written notice if the Customer fails to pay any of the Fees or any other sums due by the Customer to the Supplier under this Agreement on the due date for payment and remains in default not less than 3 months after the due date for payment.
2. The Customer may terminate the Contract at any time upon providing at least 90 days prior written notice subject to the Customer paying the Cancellation Charge.
3. Without affecting any other right or remedy available to it, either Party may terminate the Contract with immediate effect by giving written notice to the other party if:
   1. the other Party commits a material breach of any terms of the Contract which is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 28 days after being notified in writing to do so;
   2. the other Party repeatedly breaches the Contract in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the Contract;
   3. the other Party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
   4. the other Party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other Party with one or more other companies or the solvent reconstruction of that other Party;
   5. a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other Party other than for the sole purpose of a scheme for a solvent amalgamation of that other Party with one or more other companies or the solvent reconstruction of that other Party;
   6. an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other Party;
   7. the holder of a qualifying floating charge over the assets of that other Party has become entitled to appoint or has appointed an administrative receiver;
   8. a person appoints or becomes entitled to appoint a receiver over the assets of the other Party;
   9. a creditor or encumbrancer of the other Party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other Party’s assets and such attachment or process is not discharged within 14 days; or
   10. the other Party suspends, ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
4. If clause 25.3 applies, then without prejudice to any other right or remedy available to the Supplier it shall be entitled to cancel the supply of Managed Services without any liability to the Customer and any unpaid Managed Services shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
5. On termination or expiry of the Contract:
   1. each Party shall return and make no further use of any equipment, property, materials and other items (and all copies of them) belonging to the other Party; and
   2. any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced.
6. Upon expiration or termination of the Contract, the Customer must discontinue use of the Managed Services and relinquish use of the IP addresses and server names assigned to the Customer by the Supplier, including pointing its domain name(s) away from the Managed Services. The Customer agrees that the Supplier may, as it determines necessary, make modifications to DNS records and zones on the Supplier’s managed or operated DNS servers and services.
7. Any provision of this Contract that expressly or by implication is intended to come into or continue in force on or after termination of this Contract shall remain in full force and effect.

26. Exit Assistance

1. Reasonably promptly following expiry or termination of the Contract for any reason, the Supplier will provide the Customer with one electronic copy of the Customer Data, in the format it is then in and on an “as-is” basis. Thereafter, subject to clause 26.3 and 20, the Supplier may at its option delete the Customer Data.
2. Reasonably promptly following expiry or termination of the Contract for reasons other than those set out in clause 25.3, the Supplier will:
   1. hand over to the Customer all relevant passwords specific to the Managed Services provided to the Customer; and
   2. provide the Customer with such reasonable assistance and information in transitioning the Managed Services to a replacement supplier (“Replacement Supplier”) as the Customer may request, chargeable to the Customer on a time and materials basis at the Supplier’s then-current rates for a period of no more than 90 days following such expiry or termination (together, the “Transition Assistance Period”).
3. Notwithstanding clause 26.2, if requested to do so by the Customer, upon expiry or termination of the Contract for reasons other than those set out in clause 25.3 and subject to continuing payment by the Customer of the applicable Fees, the Supplier will use reasonable endeavours to continue to provide such of the Managed Services as the Customer may require for up to 30 days following such termination or expiry so as to allow the Customer to transition to a Replacement Supplier. The Customer acknowledges that certain upstream suppliers may not permit such transitional provision, and therefore agrees that this clause 26.3 will not apply in respect of Managed Services which are dependent upon such upstream suppliers.
4. If applicable, on expiry or termination of the Contract the Supplier shall (at its option) sell to the Customer, and the Customer shall buy, the Customer Site Equipment (if not already owned by the Customer pursuant to the terms of this Contract) for net book value, calculated in accordance with the Supplier’s reasonable then-current depreciation policy. Title to such Customer Site Equipment shall pass to the Customer on payment.

27. TUPE

1. The parties agree that the outsourcing of the Managed Services to the Supplier shall constitute a service provision change as defined in regulation 3(1)(b) of TUPE and that on the Activation Date the employment of the Employees shall transfer to the Supplier pursuant to TUPE.
2. The Customer shall be responsible for and shall indemnify and keep indemnified the Supplier in full against:
   1. any Employee Liabilities and Employment Costs arising out of or in connection with:
      1. the employment or engagement of the Employees or any other person; or
      2. the termination of the employment or engagement of any person;
         in each case by the Customer or any Previous Supplier during the period prior to the Activation Date; and
3. any failure by the Customer or any Previous Supplier to comply with its obligations under TUPE or this clause 27.
4. The Supplier shall be responsible for and shall indemnify and keep indemnified the Customer in full against:
   1. any Employee Liabilities and Employment Costs arising out of or in connection with the employment or engagement of the Employees or (except as provided in clause 27.5) any other person by the Supplier on and after the Activation Date;
   2. any failure by the Supplier to comply with its obligations under TUPE or this clause 27; and
   3. any claim against the Customer by any Employee under regulation 4(9) or 4(11) of TUPE.
5. The Customer shall not during the period between the date of this Agreement and the Activation Date:
   1. increase or decrease the number of Employees performing the Services by more than 10%;
   2. increase the remuneration of any Employee other than by an annual pay increase of no more than 3% or otherwise change the terms and conditions of employment of any Employee;
   3. terminate the employment or engagement of any Employee; or
   4. cease to assign any Employee to the Managed Services.
6. If any person employed or engaged by the Customer or any Previous Supplier other than an Employee transfers or alleges that his employment or engagement (or any liability related thereto) transfers to the Supplier under TUPE or otherwise as a result of the Supplier providing the Managed Services, the Supplier may within 21 days of the date on which such person transfers or is alleged to transfer:
   1. notify the Customer of that fact and that the Supplier intends to dismiss such person; and
   2. dismiss any such person. The Customer will indemnify and will keep indemnified the Supplier from all Employee Liabilities which the Supplier may incur as a result of TUPE applying or being alleged to apply including without limitation any Employee Liabilities arising out of or in connection with any dismissal permitted by this clause 27.5 (including the cost of employment until the date of dismissal).
7. Subject to any obligations under applicable data protection legislation, the Customer will provide the Employee Information in respect of the Employees to the Supplier no later than 28 days prior to the Activation Date.
8. Subject to any obligations under applicable data protection legislation, the Supplier will provide the Employee Information in respect of the Supplier Personnel to the Customer upon request by the Customer:
   1. at any time during the last two months of the Initial Term or of any Renewal Term; or
   2. at any time after notice to terminate this Contract has been given by either party.
9. The Supplier shall be liable for paying all Employee Costs from the Activation Date and shall be responsible for making all deductions required by applicable laws.
10. The parties will comply with their obligations to provide information to a Replacement Supplier about the individuals assigned to the Services and to inform and consult with affected employees in relation to any potential transfer to a Replacement Supplier under TUPE.

28. Notices

1. Any notice given to a Party under or in connection with this contract shall be in writing and shall be delivered by hand or by pre-paid first-class post at its registered office (if a company) or its principal place of business (in any other case) for the attention of the Customer Representative or Supplier Representative. Notice may also be served by email to the Customer Representative or Supplier Representative or any address used by the Parties during its relationship. Notices sent to the Supplier can be sent to the Supplier Representative and cc’d to accounts@nomical.com and support@nomical.com.
2. Any notice shall be deemed to have been received:
   1. if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
   2. if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second business day after posting.
   3. if sent by email, 2 working hours after sending (being between 08:30 and 17:30 on a normal business day).
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.

29. Non-solicitation

1. Both parties agree that during the Initial Term and any Renewal Term, and for a period of twelve (12) months after its termination or expiry, neither party shall entice or seek to employ or engage directly or indirectly (without the other party’s prior written agreement) make or seek to make any offer of employment or engagement to any of the other Party’s officers, employees or workers, including those of any of its sub-contractors who have been involved in the course of the negotiation, conclusion and performance of the Contract.
2. If any officer, employee or worker of a Party leaves the employment of that Party as a result of a breach of this clause and commences employment with, or provides services to, the other Party, it shall pay the non-breaching Party 50% of the higher of:
   1. the annual salary (including any benefits-in-kind, bonus payments, commissions and other benefits) of the employee at the date that they ceased to be an employee of the non-breaching Party; or
   2. the annual salary of the employee at the time they commence employment by the breaching Party.
3. Each Party acknowledges that any such payment is by way of liquidated damages and is a reasonable and genuine pre-estimate of the non-breaching party’s losses.

30. Remedies

1. Except as expressly provided by these Conditions, the rights and remedies provided under this Contract are in addition to, and not exclusive of, any rights or remedies provided by law.

31. Insurance

1. Each party shall at all times maintain appropriate policies of insurances with a reputable insurance company to cover their separate risks and liabilities under this agreement (such policies to include but not be limited to public liability insurance in an amount of not less than GBP 5,000,000 for any event, unless the parties agree otherwise in writing).

32. No Waiver

1. No failure or delay by a Party to exercise any right or remedy provided under this Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

33. Force Majeure

1. The Supplier shall have no liability, nor will Service Levels apply, to the Managed Services if the Supplier is prevented from or delayed in carrying on its business or performing its obligations by acts, events, omissions or accidents beyond its reasonable control, including without limitation strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors.

34. Severance

1. If any provision or part-provision of this Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Contract. If any provision or part-provision of this Contract is invalid, illegal or unenforceable, the Parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.

35. Assignment

1. Either Party may, in the event of a Change of Control, assign or transfer all or any of its rights or obligations under the Contract.
2. Subject to clause 35.1 and 35.3, the Parties shall not, without the prior written consent of the other Party, assign, transfer, charge, sub-contract or deal in any other manner with any of its rights or obligations under the Contract.
3. The Customer accepts that the Supplier may sub-contract, outsource or resell all or parts of the delivery of a Managed Service, provided that the Supplier remains responsible for any act or omissions of any such third parties.

36. No Partnership or Agency

1. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the Parties, constitute any Party as the agent of another Party, nor authorise any Party to make or enter into any commitments for or on behalf of any other Party.
2. Each Party confirms it is acting on its own behalf and not for the benefit of any other person.

37. Third-Party Rights

1. Nothing in the Contract will confer any rights on any third-parties.

38. Anti-bribery

1. Neither party will commit, or do or omit to do any act or thing which would result in the other Party committing an offence under sections 1, 2 or 6 of the Bribery Act 2010.

39. Entire Agreement and Amendment

1. The Contract constitutes the entire agreement between the Parties and supersedes all previous discussions, correspondence, negotiations, arrangements, understandings and agreements between them relating to its subject matter.
2. Each Party acknowledges that in entering into the Contract 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 the Contract.
3. No alteration to or variation of the Contract 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.

40. Governing Law and Jurisdiction

1. The Contract and any disputes or claims arising out of or in connection with it or its subject matter or formation (including without limitation disputes or claims) are governed by and construed in accordance with the law of England and Wales and the courts of England and Wales shall have exclusive jurisdiction to settle any such dispute. Any order or judgment of such courts shall be enforceable in any jurisdiction. This clause shall not prevent the Supplier from taking steps in any jurisdiction (including but not limited to seeking injunctive relief) to prevent the Customer from breaching any obligation under this Contract.

Last updated: 26th November 2019