IT SERVICES MASTER SERVICE AGREEMENT – SECURE PLUS ONLY

THIS IT SERVICES FRAMEWORK AGREEMENT is made on the date you signed your statement of works or managed service proposal.             

 

BETWEEN:

 

(1)          Outbound Solutions & Computing Limited trading as Outbound™ registered in England under number 04886977 whose registered office is at Suite 1796, Fergusson House, 124 City Road. London. EC1V 2NX, United Kingdom (“the Supplier”)

 

and

 

 

(2)          You the customer who has confirmed their company details and signed the relevant paperwork in order to proceed with an IT Services Agreement (“Client”). 

 

BACKGROUND:

 

• The Supplier is in the business of developing and providing information technology consultancy activities.
• The Supplier has agreed to provide, and the Client has agreed to obtain, the Services, on the terms set out in this Agreement and its Schedules.
• Further Schedules will be added to this Agreement in due course, or alternatively any existing Schedule may be amended in writing with the consent of the Parties.

 

1. Definitions
   • In this Agreement, the following expressions have the following meanings:

“Agreement”: means this IT Services Framework Agreement including all of its Schedules.

“Assets”: any Client-site Equipment, Software or Intellectual Property Rights used by the Supplier exclusively for the delivery of the Managed Services to the Client.

“Authorised Persons”: means, in respect of either party to this Agreement, and its employees, consultants, directors, officers, representatives, agents, sub-contractors and [financial] advisors.

“Business Day”: a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.

“Confidential Information”: all and any Information (however recorded or preserved) provided by the Supplier or any Authorised Persons to the Client or any Authorised Persons in connection with the Agreement which information is either labelled as such or should reasonably be considered as confidential because of its nature and the manner of its disclosure.

“Commencement Date”: means the date of this Agreement.

“Client Data”: any information that is provided by or on behalf of the Client to the Supplier as part of the Client’s use of the Services.

“Client Personal Data”: any personal data comprised in the Client Data which the Supplier processes in connection with this agreement, in the capacity of a processor on behalf of the Client.

“Client Site”: any premises occupied or used by the Client at which it receives the Managed Services.

“Client“Site Equipment”: any equipment, including tools, systems, cabling or facilities, located or to be located on a Client Site, provided by the Client, its agents, sub-contractors or consultants, but controlled or to be controlled exclusively, directly or indirectly, by the Supplier as part of the Managed Services.

“Client Software”: has the meaning given to that term in the definition of Software.

“Data Controller”: has the meaning given to that term in the DPA (Data Protection Act 2018).

“Data Processor”: has the meaning given to that term in the DPA.

“Data Protection Laws”: means any applicable Law relating to the processing, privacy and/or use of Personal Data, as applicable to either party or the Services, including:

• the GDPR;
• the Data Protection Act 2018;
• any laws which implement or supplement any such laws; and
• any laws which replace, extend, re-enact, consolidate or amend any the foregoing (whether or not before or after the date of this Agreement).

 

“Disaster Recovery Plan”: the plans maintained by the Supplier containing the actions to be taken, the resources to be used and the procedures to be followed to support recovery in the event of a disaster affecting the Managed Services. 

“Dispute”: has the meaning given in clause 19.

“Dispute Notice”: has the meaning given in clause 19.

“Dispute  Resolution Procedure”: has the meaning given in clause 19.

“Documentation”: the solution documentation made available to the Client by the Supplier from time to time which may set out any additional description of the Managed Services and/or contain the user instructions for the Managed Services.

“Exit Plan”: has the meaning given in clause 38.

 

“Fees”: the fees payable to the Supplier by the Client for the Services, as set out in the  Schedules to this Agreement.

“Force Majeure Cause”: means a cause that falls within Clause 12 of this Agreement.

“Good Industry Practice”: means, in relation to any undertaking and any circumstances, the exercise of that degree of professionalism, skill, diligence, prudence and foresight which would reasonably and ordinarily be expected from a skilled and experienced person or an internationally recognised company engaged in the same type of activity under the same or similar circumstances;

“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 Client.

“Hosting Agreement”: terms of which are directly flowed down from the Supplier’s agreement with Microsoft in relation to any hosting as set out in any of the Schedule(s).

“Incident”: any Vulnerability, Virus or security incident which concerns one or more of the following:

1. a) may affect the Assets;
2. b) may affect the Supplier network and information systems such that it could potentially affect the Client or the Assets; or
3. c) is reported to the Supplier by the Client.

“Intellectual Property Rights”: patents, rights to inventions, copyright and related rights, trademarks, trade names, domain names, rights in get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all existing and future rights capable of present assignment, applications for and renewals or extensions of and rights to claim priority from such rights, and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

“IT Partner”: a third party used by either party in the provision of a Managed Service.

“IT Service”: means each service as defined in the Schedules which form part of or will form part of this Agreement.

“Maintenance”: any error corrections, updates and upgrades that the Supplier may provide or perform with respect to the Managed Services, as well as any other support or training services to be provided to the Client under the Contract as set out in the SLA (Service Level Agreement).

“Maintenance Contract”: Hardware or Software support contracts held on supported devices and supplied by the manufacturer or recognised vendor support partner.

“Managed Services”: the managed services to be provided to the Client by the Supplier, as set out in the Schedule(s) and, or Service Descriptions, including services which are incidental or ancillary to such services.

“Mitigate”: the taking of such reasonable steps that would be taken by a prudent supplier in accordance with Good Industry Practice to mitigate against the Incident in question, which may include (in the case of a Vulnerability) coding changes, but could also include specification changes (for example, removal of affected protocols or functionality in their entirety), provided these are approved by the Client in writing in advance, and the terms Mitigated and Mitigation shall be construed accordingly.

“Monthly Service Review Meetings”: Monthly service meetings with the Client to discuss the performance of the Service(s) carried out pursuant to this agreement and its schedule(s).

“Normal Business Hours”: 09:00 am to 05:30 pm local UK time on Business Days.

“Quarterly Business Review Meetings”: Meetings every quarterly to discuss business, strategy, performance and projects required; including, but not limited to, being in relation to the Services provided or general topics where the Client requires assistance, guidance or advise.

“Renewal”: framework and schedule(s) to renew on expiry of the Term.

“RPI”: Retail Price Index.

“Service Descriptions”: definitions of what a Service provides and how it is accessed and used. Includes descriptions of the functional and non-functional properties of the service, service interfaces, and the legal and technical constraints or rules for its usage.

“Service Level Agreements” (SLA): define the arrangement of Managed Services to be expected by a Client from the Supplier as per the Schedules or Service Descriptions that are or in due course shall be attached to this Agreement.

“Services”: the Set-up Services, the Managed Services, the Maintenance and the Transition Services.

“Setup Services”: the due diligence, configuration, assessment, project and documentation work referred to the Schedules, to be performed by the Supplier to set up the Managed Services.

“Software”: any software used by the Supplier (or any of its sub-contractors) to provide the Managed Services to the Client whether owned by a third party and used under licence, by the Client or by the Supplier themselves.

 

“Statement of Works” (SOW): means the detailed activities, timetable dependencies and sequence of events which the Supplier shall perform, or procure the performance of, when delivering the Set-up Services.

“Time and Materials”: mean that the Fees the Client shall pay under a PO or SOW are calculated on the basis of the specific time. Materials, and resources spent by Company;

“Term”: means the period commencing on the Commencement Date and ending on the anniversary of the agreed as part of your signed agreement/statement of works . Each Schedule term will supersede the framework dates in this Agreement.

“Third Party Software”: has the meaning given to that term in the definition of Software.             

“Transition Services”: the services to be provided by the Supplier to implement the Exit Plan.

“UK Data Protection Legislation”: all applicable legislation in force from time to time in the United Kingdom applicable to data protection and privacy including but not limited to, The UK GDPR (the retained EU Law version of the General Data Protection Regulation ((EU) 2016/679); as it forms part of the law of England and Wales, Scotland and Northern Ireland by virtue of section 3 of the European Union (Withdrawal) Act 2018; the Data Protection Act 2018 (and regulations made thereafter) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.

“Virus”: includes any malicious code, Trojan, worm and virus, lock, authorisation key or similar device that impairs or could impair the operation of the Software or the Managed Services.

“Vulnerability”: a weakness in the computational logic (for example, code) found in software and hardware components that, when exploited, results in a negative impact to confidentiality, integrity, or availability, and the term Vulnerabilities shall be construed accordingly.

• Unless the context otherwise requires, each reference in this Agreement to:
  • ‘writing”, and any cognate expression, includes a reference to any communication effected by electronic or similar means;
  • A statute or a provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time;
  • “Agreement” is a reference to this IT Services Framework Agreement and each of the Schedules as amended or supplemented at the relevant time;
  • a Schedule is a schedule to this Agreement;
  • a Services Description referred within the Agreement or any of its Schedules.
  • an Annex is, in relation to this Agreement, an annex attached to (and forming part of) Terms of this Agreement or in a Schedule or Service Description forming part of the Contract; and       
  • a “party” or the “parties” refer to the parties to this Agreement.
• Reference in this Agreement to a Clause or paragraph is a reference to a Clause or paragraph of this Agreement (other than the Schedules).
• Clause, schedule, appendices and paragraph headings shall not affect the interpretation of this Agreement.
• Any phrase introduced by the words including, includes, in particular or for example, or any similar phrase, shall be construed as illustrative and shall not limit the generality of the related general words.
• References to clauses and Schedules are to the clauses and schedules of this agreement. References to paragraphs are to paragraphs of the relevant Schedule.
• Words imparting the singular number shall include the plural and vice versa.
• References to any gender shall include the other gender.
• References to persons shall include corporations.
• In the event of any conflict or inconsistency between the Clauses, appendix (including any changes to the appendices or additions or variations to the appendices) and the schedules to this Agreement (including any changes to the schedules or additions or variations to the schedules), the following order of precedence shall apply (in decreasing order) to the extent of such conflict or inconsistency:
  • the appendices (including any future appendices
  • the schedules (including any future schedules); and
  • the Clauses and or Agreement.
• The headings in this agreement are inserted for convenience only and shall not affect the interpretation or construction of this agreement.
• All references to time or days in this agreement will be interpreted as time or day in the United Kingdom, unless stated otherwise.

2. Purpose of this Agreement

The purpose of this Agreement is to:

• provide the framework to administer each Schedule under the agreement framework. Each Schedule is a legally binding agreement in its own right and its duration may supersede that of this Agreement albeit subject to such clauses that survive termination and defined within this Agreement; and
• set out the terms and conditions that are to apply.
• The Client has initially selected the following services to be provided by The Supplier
  • IT Support Services defined within the Schedules;
  • Project based work defined within a scope of works;
  • Cloud support and licenses defined within the Schedules.
• Each Service provided by The Supplier will be shown in detail as a schedule and will be incorporated to form part of this Agreement. No materials or Services shall be provided to the Client by virtue of signing this agreement alone but shall require a signature from an authorised party for each Schedule.
• Any additional Schedules or amendments to this agreement must be pursuant in accordance with the Change Control Process set out in clause 6.

3. Term
   • This Agreement shall take effect on the Commencement Date and shall continue, unless terminated earlier in accordance with clause 14 (Termination), until the end of the Term when it shall terminate automatically without notice.
   • Each Schedule shall come into effect on the Effective Date advised on the on the date of the Schedule. Each Schedule will automatically renew, unless notice is given by either party in accordance with the terms of the Schedule.
   • Project based work- these are outside the scope of this agreement and will be defined separately. Each project will produce a statement of works or quotation and will be processed according to our new business procedure.
4. Invoicing and payments
   • All Fees are subject to change provided at least 7 days prior notice until the Commencement Date. This clause 4.1 shall apply to any change in Fees set out in a Schedule before such Schedule comes into effect.
   • The Client acknowledges that the Fees chargeable in respect of certain Cloud Services (for example, Azure, Google, Amazon, Microsoft Office 365, cloud backup) are based on the Client’s actual usage, and that the level of usage of such Cloud Services is controlled by the Client. The Client therefore agrees in respect of such Cloud Services to pay such Fees as the Client may incur as a result of its actual usage, without the requirement for any additional purchase order. The Client further acknowledges that fees charged by the upstream suppliers of certain Cloud Services will vary from time to time during the Term. The Client 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.
   • Guidance fees are set out at the Annex to this Agreement. However, each Schedule will record the fees and other payments due pursuant to that Schedule and the Guidance fees do not set any precedence for any Schedule.
   • The Client shall pay each invoice submitted to it by the Supplier within thirty days of receipt to a bank account nominated in writing by the Supplier from time to time.
   • Without prejudice to any other right or remedy that it may have, if the Client fails to pay the Supplier any sum due under this Agreement on the due date:
     • the Client shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment.
     • Interest under this clause 5 will accrue each day at 3% a year above Santander UK PLC’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%;
     • the Supplier may suspend all or part of the Services until payment has been made in full.
   • Price variation (Annually)

The Supplier may increase the Prices each anniversary of this date by giving the Customer not less than 21 Business Days’ notice in writing provided that:

1. the number of Price increases during the Term does not exceed one per annum and
2.    the increase does not exceed 8% of the value of the Prices in effect immediately prior to the increase,

(excluding any increases imposed under clause 4.6.iii).

iii. Notwithstanding clause 4.6.ii, the Supplier may increase the Prices with immediate effect by written notice to the Customer where there is an increase in the direct cost to the Supplier of supplying the Services and which is due to any factor beyond the control of the Supplier.

iv.If the Customer does not agree with any increase in the Prices notified under clauses 4.6 ii or 4.6.iii then the Customer may refer the matter to Dispute Resolution pursuant to clause 44 of this Agreement. This clause 4.6 shall apply to any price increase arising directly from one of the Agreement’s Schedules.  such notice) entered into an irrevocable commitment with any third party in connection with the Services.

• If the Supplier suffers an increase in costs from a third-party provider which is in excess of the percentage at clause 4.6 above, the supplier will inform the Client of the revised about of any change to costs.
• Clients with no trading history with the Supplier will be subject to a trade credit reference check. Credit limits will be notified to the Client along with the Supplier’s initial trading policy. 
• If the Client’s Service or Schedule exceeds their trade credit limit in accordance with 4.5 above a proforma invoice will be required or payment in advance may be requested.
• Consultancy, project, change, assignment work will be accordance with the Supplier charges within the Schedules. A copy of the basic rate card is included with agreement – these costs are for guidance only. Any costs are confirmed with each Schedule and those specified costs shall prevail.
• If the Client is in breach of any obligations under this Agreement (including payment obligations) which has not been directly caused by the actions of the Supplier, and such breach is not remedied within 14 calendar days, then Supplier shall have the right to suspend immediately any related Services if deemed reasonably necessary by Supplier to protect the proper interests of Supplier or its other Clients.
• Applicable third-party support and licensing Fees will be payable at initial purchase and any subsequent renewal dates.
• The Client is wholly responsible for the payment of any withholding tax and/or any other taxes that may be imposed by any other third parties including, but not limited, to government agencies.
• If the Client reasonably disputes any portion of an invoice, the Client must submit a written claim for the disputed amount within thirty (30) calendar days after delivery of the relevant invoice and shall at all times remain liable for the payment of all items not disputed or not validly disputed as reasonably determined by the Supplier. Where such dispute turns upon level of usage of the Managed Services, the Supplier’s records of such usage shall be presumed to be accurate unless proved otherwise by an independent expert appointed by the Supplier or appears to be contrary to Client’s written purchase order for such Services.
• The Client waives the right to dispute any Fees not disputed within thirty (30) days of receipt of the relevant invoice.
• When a dispute regarding amounts payable under the Contract is resolved to the Client’s reasonable satisfaction, the Client will immediately pay any amounts that were the subject of such dispute.
• The Client shall reimburse the Supplier for all actual, reasonable expenses including but not exclusively travel costs and expenses including airfares, hotels and meals incurred by the Supplier, at cost.
• On expiry or termination of the Contract for any reason, any Fees incurred but unpaid shall become immediately due and payable and shall represent a debt due from the Client to the Supplier.
• All sums payable to the Supplier under this Agreement:

(a) are exclusive of VAT, and the Client shall in addition pay an amount equal to any VAT chargeable on those sums on delivery of a VAT invoice; and

(b) shall be paid in full without set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

• All adhoc Consultancy, project, change, assignment work will be accordance with the Supplier rate card’s set out at the Annex to this Agreement, unless a different rate is mutually agreed between the Parties and agreed in writing.

5. Contact Details
   • Accounts: accounts@outbound.group
   • General: Info@outbound.group
   • Legal: legal@outbound.group
   • Sales: sales@outbound.group
   • Support: servicedesk@outbound.group
6. Change control
   • Either party may propose changes to the scope or execution of the Service but no propose changes shall come into effect until a Change Order has been signed by both parties. A Change Order shall be a document setting out the proposed changes and the effect that those changes will have on:
     • the Services;
     • the Supplier’s existing charges;
     • any of the terms of this Agreement.

 

• If the Supplier wishes to make a change to the Services it shall provide a draft Change Order to the Client.
• If the Client wishes to make a change to the Services:

• It shall notify the Supplier and provide as much detail as the Supplier reasonably requires of the proposed changes, including the timing of the proposed changes; and
• The Supplier shall, as soon as reasonably practicable after receiving the information at clause 6.2 (a) above, provide a draft Change Order to the Client.
  • If the Client requires additional Schedules to fall under this agreement, these Schedules will be provided and signed, this agreement will not require additional signatures unless each party agrees to any changes.
  • The Client acknowledges that the supplier may not be able to make changes to any services that are provided by a third party.
  • Any third-party contracts that can be altered may have a cut-off date for change. The Supplier and the Client will have to abide by this date.
  • Any change request received will be responded to by the Supplier to confirm if the change requested can be implemented and the estimated date for it to be actioned (if relevant).
  • If any costs are involved, The Supplier will do the following:
    1. Provide a new quotation for additional hardware, software or change in service;
    2. Advise the cost any additional resources that may be required to implement the change;
    3. Give an estimated time scale for change;
    4. Advise if the change is feasible with the constraints of the current agreement or schedule.
  • Should the Supplier duly perform its obligations under clause 6.8 above, the Client will:
    1. Accept the change request quotation before any action by the Supplier is taken; or
    2. Reject the change request quotation; and/or
    3. Make any amendments to the change request and submit asking for a revised quotation.
  • No changes will be made to the scope of the Contact or Services until formal confirmation has been received.
  • Changes to this Agreement may be the consequences of alterations to prevailing laws and regulations which may also increase the costs pursuant to this Agreement and its Schedules.

7. Change of control
   • If there is a Change of Control with the Client this Agreement and its Schedules remain with their terms.
   • The Client shall have the right, without prejudice to its other rights or remedies, to terminate this Agreement by 12 months’ written notice to the Supplier.
8. Scope of this Agreement
   • This Agreement governs the relationship between the parties in relation to the supply of any IT Service(s) by the Supplier to the Client;
   • The Client may in its absolute discretion, during the Term from time to time, place an order in accordance with the Ordering Procedure to purchase any IT Service from the Supplier;
   • The parties agree that:
     • The Client has no obligation to purchase any particular IT Hardware or any minimum quantity or value of any type(s) of IT Service from the Supplier during the Term, except were specified within the Schedules or where a third party operable terms apply minimum quantity threshold; and
     • No form of exclusive arrangement is created by this Agreement and nothing in this Agreement shall either prevent the Client from obtaining from any third party/ies any services similar to or the same as any of the IT Services or prevent the Supplier from providing to any third party/ies any services similar to or the same as any of the IT Services.
     • However, such third party arrangements must not cause prejudice or detract to the implementation of this Agreement or as the case may be detract or cause conflict of interest between the Supplier and Client.
   • Each Schedule shall be a separate legally binding agreement between the parties;
   • Unless and until a Schedule for any particular IT Service is entered into in writing by the parties, there shall be no binding agreement between them in relation to that IT Service;
   • The term of each Schedule shall be as provided by that Schedule, it shall expire or be terminated in accordance with the terms of that Schedule and, unless otherwise agreed in writing by both parties, that Schedule may validly provide for it to extend beyond the expiry or termination of this Agreement, and the expiry or any termination of this Agreement shall not have the effect of terminating any Schedule; and
   • In the case of conflict or ambiguity between any provision contained in the body of this Agreement and any provision contained in any Schedule, the provision in that Schedule shall take precedence. Unless the interpretation of the provision of this Agreement relates solely to the application of this Agreement itself and not any Schedule.
9. Managed Services
   • The Supplier will provide the Managed Services with all due care, skill and ability during the Initial Term unless earlier terminated for any reason.
   • The Supplier shall provide the Managed Services in accordance with the Service Level Arrangements as stated within the Schedule(s), which may vary from Schedule to Schedule.
   • The Client shall not store, distribute or transmit any material through the Managed Services that by prevailing law:
     1. is unlawful, harmful, threatening, defamatory, obscene, harassing or racially or ethnically offensive;
     2. facilitates illegal activity;
     3. depicts sexually explicit images; and/or
     4. promotes unlawful violence, discrimination based on race, gender, age, disability, sexual orientation, religion and belief, gender reassignment, or any other illegal activities.
   • The Client shall remain responsible for the use of the Managed Services under its control, including any use by third parties that Client has authorised to use the Managed Services.
   • The Client must take reasonable measures to ensure it does not jeopardise services supplied to third parties on the same shared access infrastructure as notified to the Client by the Supplier in writing. This includes informing the Supplier promptly in the case of a denial-of-service attack or distributed denial-of-service attack. In the event of any such incident, the Supplier will work with the Client to alleviate the situation as quickly as possible. The Parties shall discuss and agree appropriate action (including suspending the Managed Services).
   • Client shall not provide the Managed Services to third parties without the prior written consent of the Supplier. Such consent shall not be unreasonably refused or delayed.
   • The Client acknowledges that the Supplier may at any time, with the Client’s prior written approval, incorporate licence management software into elements of the Managed Services for the purposes of ensuring that licence rights are not exceeded, where the Supplier has a licencing responsibility for software installed on the Client server. Any such costs relating to such incorporation shall be at the Client’s sole cost and expense.
   • The Client agrees that throughout the terms of this Agreement that they will ensure they will have the minimum IT requirements specified in their IT environment for the Supplier to provide their services.
   • The Client acknowledges that certain conditions outside of the Supplier’s control may adversely impact the ability of the Supplier to perform functions of the Managed Services. Examples of such conditions are listed below:
     1. failure of Client Hardware, software or operating system;
     2. partial or full failure of Windows Azure / Google / Amazon services;
     3. Network connectivity issues between Client server and the Supplier’s monitoring platform;
     4. Network connectivity issues between Client server and Microsoft Azure / Google / Amazon or Client Infrastructure.
   • 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 Service over its network, provided that this has no adverse effect on the Supplier’s obligations or performance under this Agreement and its provision of the Managed Services or the Service Level Arrangements. If such changes will have an adverse effect, the Supplier shall notify the Client and the Parties shall follow the Change
   • Acceptable usage policy is defined in Clause 30.
   • Any cancellation of any maintenance work, organised on or off-site, either during the week, weekend or out of hours, which occurs less than 5 usual working days may be subject to full charge of services.
   • The Client shall ensure that all internal users, staff, authorised agents and contractors and external users shall comply with:
     1. The license conditions and usage restrictions of any software relating to this agreement or schedule; and
     2. The license condition and usages restrictions governed by any third party; and
     3. Comply with the Acceptable usage policy.

10. Data Protection
    • The Supplier will only use the Client’s personal information as set out in the Supplier’s Privacy Notice available from the website outbound.group
11. Data Processing
    • In this Clause 11 and in this Agreement, “personal data”, “data subject”, “data controller”, “data processor”, and “personal data breach” shall have the meaning defined in the General Data Protection Legislation.
    • Both parties will comply with all applicable requirements of the Applicable Data Protection Laws. This clause 11 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under Applicable Data Protection Laws.
    • Should the determination in clause 11.2 change, the parties shall use all reasonable endeavours to make any changes that are necessary to this clause 11.
    • All personal data to be processed by the Supplier on behalf of the Client, subject to this Agreement, shall be processed in accordance with the terms of a data processing agreement into which the parties shall enter before any personal data is processed.
    • For the purposes of the Data Protection Legislation and for this Agreement, the Supplier is the “Data Processor” and the Client is the “Data Controller”,
    • The Data Controller shall ensure that it has in place all necessary consents and notices required to enable the lawful transfer of personal data to the Data Processor for the purposes described in this Agreement.
    • The Data Processor shall, with respect to any personal data processed by it in relation to its performance of any of its obligations under this Agreement:
      • Process the personal data only on the written instructions of the Data Controller unless the Data Processor is otherwise required to process such personal data by Law. The Data Processor shall promptly notify the Data Controller of such processing unless prohibited from doing so by Law:
      • Ensure that it has in place suitable technical and organisational measures to protect the personal data from unauthorised or unlawful processing, accidental loss, damage or destruction. Such measures shall be proportionate to the potential harm resulting from such events, taking into account the current state of the art in technology and the cost of implementing those measures.
      • Ensure that any and all staff with access to the personal data (whether for processing purposes or otherwise) are contractually obliged to keep that personal data confidential;
      • Not transfer any personal data outside of the UK without the prior written consent of the Data Controller:

(a)The Data Controller and/ or the Data Processor has/have provided suitable safeguards for the transfer of personal data;

(b) Affected Data Subjects have enforceable rights and effective legal remedies;

(c) The Data Processor complies with its obligations under the Data Protection Legislation, providing an adequate level of protection to any and all personal data so transferred; and

 

      (d)The Data Processor complies with all reasonable instructions given

      in advance by the Data Controller with respect to the processing of    

      personal data.

• Assists the Data Controller at the Data Controller’s cost, in responding to any and all requests from data subjects and in ensuring its compliance with the Data Protection Legislation with respect to security, breach notifications, impact assessments, and consultations with supervisory authorities or regulators (including, but not limited to, the Information Commissioner’s Office);
• Notify the Data Controller without undue delay of a personal data breach;
• On the Data Controller’s written instruction, delete (or otherwise dispose of) or return all personal data and any and all copies thereof to the Data Controller on termination of this Agreement unless it is required to retain any of the personal data by law.

• The Data Processor shall not sub-contract any of its obligations to a sub-processor with respect to the processing of personal data without the prior written consent of the Data Controller (such consent not to be unreasonably withheld). In the event that the Data Processor appoints a sub-processor, the Data Processor shall:
  1. Enter into a written agreement with the sub-processor, which shall impose upon the sub-processor the same obligations as are imposed upon the Data Processor by this Clause 11 and which shall permit both the Data Processor and the Data Controller to enforce those obligations; and
  2. Ensure that the sub-processor complies fully with its obligations under that agreement and the Data Protection Legislation.
• The Supplier is not responsible in any way for the acts and omissions of any third party in the relation to their processing of personal data.

12. Force Majeure
    • Neither party shall have any liability under or be deemed to be in breach of this Agreement for any delays or failures in performance of this Agreement which result from any event beyond the reasonable control of that party. The party affected by such an event shall promptly notify the other party in writing when such an event causes a delay or failure in performance and when it ceases to do so. If such an event continues for a continuous period of more than three months, either party may terminate this Agreement by written notice to the other party
13. Proprietary Rights
    • The Client acknowledges and agrees that, as between the parties, the Supplier and/or its licensors own all Intellectual Property Rights in the Services and Schedules and in all other materials connected with the Services and/or developed in connection with the Agreement by the Supplier its officers, employees, sub-contractors or agents. Excepted as expressly stated in the Contract, the Contract does not grant the Client any rights to such Intellectual Property Rights.
    • The Supplier shall not disclose to the Client or use in its work any trade secrets or confidential information of a third party which the Supplier is not lawfully entitled to disclose or use in such manner. The Supplier shall not use any equipment, supplies, facilities, computer code, work product, inventions or materials of any other third party (Third-Party Materials) in any products or services or in the Supplier’s performance under the Contract unless:
      • The Supplier has the full right and authority to do so without violating any rights of any third party;
      • The Supplier has obtained all necessary rights to enable it to perform its obligations under the Contract and grant the rights granted pursuant to the Contract, and to permit the Client to utilise the Third-Party Materials as contemplated under the Contract, in each case at no additional cost or expense to the Client;
      • the Client’s use of such Third-Party Materials will not restrict or impair in any manner its use of the Services or subject the Client to any obligation or liability; and
      • such Third-Party Materials are specifically identified to the Client in writing in advance of any use and the Client has agreed in writing to such use.
      • Nothing contained in this Agreement shall restrict either party from the use of any general ideas, concepts, Know-how, methodologies, processes, technologies, algorithms or techniques retained in the unaided mental impressions of such party’s personnel relating to the Services which either party, individually or jointly, develops or discloses under this Agreement (Residual Knowledge) provided that in doing so such party does not:
      • infringe the Intellectual Property Rights of the other party or third parties who have licensed or provided materials to the other party; or
      • breach its confidentiality obligations under this Agreement or under agreements with third parties.

14. Termination, Suspension
    • The Client may terminate this Agreement by serving notice on the Supplier with effect from one hundred and eighty (180) days written notice prior to the expiry of Term within each Schedule. The Client may terminate this Agreement and Schedules by serving notice on the Supplier not before six months of the term has expired. This Agreement and any Schedules shall terminate after  six months written notice unless the stated notice period is greater than six months or any Schedule is expressly excluded from the notice period.
    • This Agreement shall commence on the Commencement Date and shall continue in force unless and until terminated in accordance with the provisions of this Agreement. Each Schedule shall commence on the date stated in the Schedule and shall continue in force unless and until terminated in accordance with the provisions of the Schedule.
    • This Agreement shall, unless terminated earlier in accordance with this Clause, automatically be extended for the same Term, unless a Party gives written notice to the other Party, not later than ninety (90) days before the end of the Term, to terminate this Agreement at the end of the Term, as the case maybe
    • Without affecting any other right or remedy available to it, either Party may terminate this Agreement in respect of a specific Schedule only at any time with immediate effect by giving written notice to the other Party if the other Party:
      1. commits a material breach of any term of this Agreement or any Schedule and such breach is irremediable or, the other Party fails to remedy that breach, if such breach is remediable, within a period of 60 days after being notified in writing to do so; or
      2. the other party repeatedly breaches (more than three occasions in any 12 month period calculated from the Commencement date) any of the terms of this agreement 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 terms of this agreement.
      3. the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1) or 123(2) 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 any of its creditors;
      5. the other party applies to the court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986;
      6. a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party (being a company);
      7. an application is made to court, or an order is made, for the appointment of an administrator, or a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party (being a company, partnership or limited liability partnership);
      8. the holder of a qualifying floating charge over the assets of that other party (being a company or limited liability partnership) has become entitled to appoint or has appointed an administrative receiver;
      9. a person becomes entitled to appoint a receiver over all or any of the assets of the other party or a receiver is appointed over all or any of the assets of the other party;
      10. a creditor or encumbrancer of the other party attaches of takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any party of the other party’s assets and such attachment or process is not discharged within 14 days;
      11. any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 14.4(c) to clause 14.4(j) (inclusive);
      12. the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
      13. The other party’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this agreement is in jeopardy.
    • For the purposes of clause 14 4 (a) above material breach means a breach (including an anticipatory breach) that is serious in the widest sense of having a serious effect on the benefit which the terminating party would otherwise derive from:
      1. a substantial portion of this agreement; or
      2. any of the obligations set out in clauses 9,10,11,19,20,21, and 26

over the term of this Agreement. In deciding whether any breach is material no regard shall be had to whether it occurs by some accident, mishap, mistake or misunderstanding.

• Termination of this Agreement, for any reason, shall not affect the accrued rights, remedies, obligations or liabilities of the Parties existing at termination.
• Termination of any Schedule shall be without prejudice to any other rights which any party may have under any other Schedule.
• Subject to clause 14.8.9 the Supplier may suspend all or any part of any Managed Service without liability to the Client if:
  • The Supplier reasonably believes that the Managed Services or Schedules have, are or will be used in breach of the Contract;
  • The Supplier discover that the Client is affiliated in any manner with a person who has used similar services abusively in the past;
  • The Client does not co-operate with the Supplier investigation of any suspected breach of the Contract;
  • The Supplier reasonably believes that the Client has permitted the Managed Services to be accessed or manipulated by a third party without its consent;
  • The Supplier reasonably believes that Client 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 any of the schedules;
  • The Supplier reasonably believes that suspension of the Managed Services is necessary to protect the Supplier’s System or the Supplier’s other client;
  • Any Fee or other amount due under any of the Schedules is overdue or is at risk of non-payment in the opinion of; or
  • The Supplier is required to do so by law or a regulatory or government body.
  • Prior to invoking any of the clauses 14.8.1 to 14.8.8 above the Supplier shall give the Client 7 (seven) days written notice that all or part of the Managed Services may be suspended identifying the relevant clauses at 14.8. The Client has 7 (seven) days in which to provide a written explanation as to why they are not in breach of clause 14.8 in part or at all. Alternatively in the same time period, if a breach has occurred or is admitted to have occurred the Client identifies and execute steps to remedy the breach. In the event of any dispute arising from clause 14.8.1 to 14.8.9 it shall be  referred to the Dispute Resolution process at clause 44 below. 
  • The Supplier shall only automatically invoke any of Clauses 14.8.1 to 14.8.8 with immediate effect in circumstances of an emergency or an identifiable breach that is likely to cause prejudice or loss to the Supplier unless immediate action is taken. This clause 14.8.10 does not prejudice the client to see remedy pursuant to clause 44 below. 

15. Obligations on termination and survival
    • Obligations on termination, suspension or expiry

              On termination or expiry of this agreement or any Schedule:

• immediately, the Client shall pay the Supplier all Fees and expenses incurred in providing the Services under that Schedule up to and including the termination date.
• the Supplier shall immediately cease provision of the Services; and
• each Party shall use reasonable endeavours to return and make no further use of any equipment, property, materials and other items (and all copies of them) belonging to the other Party.
• The Supplier shall on request return any of the Client Materials not used up in the provision of the Services.

• Suspension
  • The Supplier will give the Client 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 clients from imminent and significant operational, legal, or security risk, or non-payment of its Fees.
  • If the Supplier suspends any Managed Services pursuant to any of clauses 14.8.1, 14.8.3 or 14.8.7, then the Supplier may continue to charge the Client the Fees for the Managed Services during the period of suspension, and may charge the Client a reasonable reinstatement fee upon reinstatement of the Managed Services.
  • If the Supplier suspends any Managed Services pursuant to clause 14.9.5, then the Client must address the underlying vulnerability prior to the Supplier placing the Managed Services back in service.
  • If the Client requests, the Supplier may be able to perform this work for the Client as a supplementary service on a time and materials basis at the Supplier’s standard hourly rates as defined by this Agreement or the relevant Schedule. In the absence of a defined hourly rate then by written mutual agreement between the Parties.
• Survival
  • On termination or expiry of this agreement, the following clauses shall continue in force: clause 1 (Interpretation), clause 27 (Non-solicitation), clause 13 (Intellectual property rights), clause 39 (Confidentiality), clause 19 (Limitation of liability), clause 15 (Consequences of termination), clause 35 (Waiver), clause 34 (Severance), clause 7 (Conflict), clause 44 (Multi-tiered dispute resolution procedure), clause 45 (Governing law) and clause 45 (Jurisdiction).
  • Termination or expiry of this agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination or expiry

16. Audit
    • For the Term of the Contract, and for a period of seven years from expiry or termination of the Contract for any reason, the Supplier shall maintain full and accurate records, in an agreed form, of all charges, prices, costs and expenses associated with and invoiced in respect of the Services and all processing of data under this agreement.
    • The Client shall not be entitled to any records that include confidential internal employee information, details of the Supplier’s other Clients or any other information that would cause the Supplier to breach a confidentiality obligation to which it is subject (Excluded Information), in each case only to the extent that such information cannot be removed or redacted from the record and the disclosure of such information to the Client or any Auditor is not required by the Client for compliance with any Law.
17. Relationship of the parties
    • Nothing in this Agreement shall constitute or be deemed to constitute a partnership, joint venture, agency, or other fiduciary relationship between the parties other than the contractual relationship between the parties expressly provide for in this Agreement.
    • Neither party shall have any right or authority to do, and shall not do, any act, enter into any contract, make any representation, give any warranty, incur any liability, assume any obligation, whether express or implied, of any kind on behalf of the other party.
18. Assignment, Subcontracting, IT Partners, End User License Agreement and other Third Party Agreements
    • This Agreement is personal to the parties and, except with the written consent of the other party (such consent not to be unreasonably withheld) neither party may assign, mortgage, charge (otherwise than by floating charge) or sub-license to any third party all or any of its rights, licences or obligations under this Agreement or any Schedules.
    • The Supplier may sub-contract or otherwise delegate any of its obligations or all or any part/s of any IT Service, if written consent is required on behalf of the Client the Supplier must be notified. In this event the Supplier will notify the Client of this.
    • The Client may contract directly with an IT Partner for provision of software or services related to the Managed Services. Unless managing such contracts falls within the scope of the Managed Services, the Client will (as against the Supplier) be solely responsible for all matters arising out of such contracts with the IT Partner.
    • Where the Supplier provides to the Client access to or use of third party Software in the course of providing the Managed Services, the Client 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 Client 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 Client shall indemnify the Supplier for any loss caused by their failure to comply with such end user licence agreement.
    • The Client shall licence or procure a licence for the use of any software, programs and/or applications used by the Client and not supplied by the Supplier (including the Client’s Operating Environment). These may or may not be indirectly related to the Managed Services.
19. Warranties and Limitations of Liabilities
    • The Client warrants that:
      1. it has the full capacity and authority to enter into and perform this Agreement and that this Agreement is executed by a duly authorised representative of the Client;
      2. it has the authority to grant any rights to be granted to the Supplier under this Agreement, including the right to provide any Third Party Software and Hardware to the Supplier as indicated in this Agreement and for the same to be used in the provision of the Services and otherwise in connection with this Agreement;
      3. it owns or has obtained valid licences, consents, permissions and rights to use, and where necessary to licence to the Supplier, any materials reasonably necessary for the fulfilment of all its obligations under this Agreement, including any third-Party licences and consents in respect of any Third Party Software; and
      4. the Supplier’s use in the provision of the Managed Services or otherwise in connection with this Agreement of any third-Party materials, including any Hardware or Software supplied by the Client to the Supplier for use in the provision of the Managed Services or otherwise in connection with this Agreement, shall not cause the Supplier to infringe the rights, including any Intellectual Property Rights, of any third party.
    • The Supplier warrants and represents that:
      1. it has the full capacity and authority to enter into and perform this Agreement and that this Agreement is executed by a duly authorised representative of the Supplier;
      2. it owns or has obtained valid licences, consents, permissions and rights to enable the Supplier to comply with this Agreement and to use any of the Intellectual Property Rights necessary for the fulfilment of all its obligations under this Agreement including for the Client’s use and receipt of the Managed Services, and the Supplier shall not breach the provisions of any such necessary licences, consents, permissions and rights or cause the same to be breached;
      3. it will comply with all applicable laws in performing its obligations under this Agreement; and
      4. the Client’s use of any Supplier materials and/or third-party materials, including any materials supplied by the Supplier to the Client, shall not cause the Client to infringe the rights, including any Intellectual Property Rights, of any third party.
    • Except for any warranties expressly set forth in this Agreement, the Services are provided on an “as is” basis, and Client’s use of the Services is at its own risk. Supplier does not make, and hereby disclaims, any and all other express and/or implied warranties, statutory or otherwise, including, but not limited to, warranties of merchantability, fitness for a particular purpose and any warranties. Save that the Supplier will provide Services subject to Good Industry Practice as defined in this Agreement.
    • Notwithstanding the foregoing, the Supplier does not warrant that the Client’s use of the Services will be uninterrupted or error-free.
    • The Client hereby warrants that it has not been induced to enter into this Agreement by any prior representations, nor has it relied on any oral representation made by the Supplier or upon any descriptions, illustrations or specifications contained in any catalogues and publicity material produced by the Supplier.
    • The Supplier shall not be liable for any delay in or failure of performance caused by:
      1. the Client’s failure to provide the Supplier with adequate instructions for performance or otherwise relating to the Services;
      2. the Client’s acts or omissions, or those of its agents, subcontractors, consultants or employees;
      3. acts or omissions of third parties (unless directed by the Supplier);
      4. a Force Majeure Event.
    • Nothing in this Contract shall prevent the Supplier from entering into similar agreements with third parties, or from independently developing, using, selling or licensing materials, products or services that are similar to those provided under this Contract.
    • The Supplier may charge the Client for any additional reasonable costs and expenses properly incurred by the Supplier caused by variation in the Client’s instructions, any failure on the part of the Client to provide instructions in a reasonable and timely manner.
    • This Clause 19.9 sets out the entire financial liability of each Party (including any liability for the acts or omissions of its employees, agents and subcontractors) in respect of:
      1. any breach of this Agreement; and
      2. any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.
    • Neither party shall be liable for any of the following (whether direct or indirect):
      1. loss of profit;
      2. loss of revenue;
      3. loss of data;
      4. loss of use;
      5. loss of production;
      6. loss of contract;
      7. loss of commercial opportunity;
      8. loss of savings, discount or rebate (whether actual or anticipated);
      9. harm to reputation or loss of goodwill; and
      10. loss of business
    • The Parties’ total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to one hundred percent (100%) of the contract value pursuant to this Agreement or in the case of a Schedule one hundred per cent the contract pursuant to the Schedule. Under no circumstances shall either party hereto be liable to the other party for indirect, incidental, consequential, special or exemplary damages (even if such party has been advised of the possibility of such damages) such as, but not limited to, loss of revenue or anticipated profits or lost business.
    • Except as expressly and specifically provided in this Agreement:
      1. the Client assumes sole responsibility for results obtained from the use of the Managed Services or services defined in the Schedules, 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 Client in connection with the Managed Services, or any actions taken by the Supplier at the Client’s direction; and
      2. all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this Agreement.
    • Notwithstanding any other provision of this Agreement and Schedules, the liability of the parties shall not be limited in any way in respect of the following:
      1. death or personal injury caused by negligence;
      2. fraud or fraudulent misrepresentation;
      3. breach of any obligation as to title implied by:

1. section 12 of the Sale of Goods Act 1979;
2. section 2 of the Supply of Goods and Services Act 1982; or

• section 8 of the Supply of Goods (Implied Terms) Act 1973;
  1. any other losses which cannot be excluded or limited by applicable law.

 

20. Anti-bribery
    • Neither party will commit or do or omit to do any act or thing which would result in the other party committing, and offence under sections 1, 2 or 6 of the Bribery Act 2010.
21. Modern slavery

The Parties undertakes, warrants and represents that:

• neither they nor any of their Personnel, subcontractors or any other member of its supply chain has:
  • committed an offence under the Modern Slavery Act 2015 (an MSA Offence); or
  • been notified that it is subject to an investigation relating to an alleged MSA Offence or prosecution under the Modern Slavery Act 2015; or
  • is aware of any circumstances within its supply chain that could give rise to an investigation relating to an alleged MSA Offence or prosecution under the Modern Slavery Act 2015;
• it shall comply with the Modern Slavery Act 2015 and the Modern Slavery Policy;
• each party shall notify the other immediately in writing if it becomes aware or has reason to believe that it, or any of its Supplier Personnel, subcontractors or any other member of its supply chain have breached or potentially breached any of Supplier’s obligations under this clause. Such notice shall set out full details of the circumstances concerning the breach or potential breach of the Party’s obligations.

22. TUPE – Not Applicable

 

• Non-Solicitation
  • Both parties agree that during the period of the Contract and for a period of twelve (12) months after its termination or expiry, save for where such action is a result of a bona fide public recruitment process, neither party shall entice or seek to employ or engage directly or indirectly (without the other party’s prior written agreement, such consent not to be unreasonably withheld or delayed) or 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;
  • 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:
    • 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
    • the annual salary of the employee at the time they commence employment by the breaching party.
  • 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.
• Insurance of the Parties
  • Each party shall at all times maintain appropriate policies of insurance with a reputable insurance company to cover their separate risks and liabilities under the Agreement and Schedules
• Acceptable usage policy
  • Outbound employees and contractor adhere an acceptable usage policy.
• Not Applicable to this Agreement
• Not Applicable to this Agreement
• Not Applicable to this Agreement
• Not Applicable to this Agreement
• Not Applicable to this Agreement

31. General – Hardware, Software or Consumables

31.1. Any documentation sent to the client for sales and marketing, including prices does not constitute a contractual offer. This includes any correspondence on the website.

31.2. These would be classed as example costs and services for illustrative purposes only.

           31.3. No instruction from the Client placed with the Supplier (whether in response to a quotation or not) shall be binding on the Supplier unless and until it is accepted by the Supplier in writing. Unless otherwise agreed in writing the Supplier is not obliged to accept cancellation of accepted instructions and may require payment of a cancellation charge before accepting any cancellation.

           31.4. The Price for the Services and/or the Products shall be as set out in the Supplier’s Statement of works or quotation.

31.5. The Client agrees that the Supplier has the right at any time before delivery of the Services and/or Products to withdraw any discount and/or to revise any Price quoted if, after the Supplier acceptance of any order, there is an increase or decrease in the cost to the Supplier of supplying the Services or Products whether by reason of exchange rate fluctuations, third party changes or otherwise. Any such withdrawal or revision will constitute a counteroffer and shall not be binding on the Client unless and until it is accepted by the Client in writing.

              31.6. Prices quoted for Product and Services are excluding VAT and any other taxes

31.7. The Supplier shall:

1. Supply the Products to attain the requirements of the specification set out or described in the relevant quotation, as minimum; and supply the Products in accordance with
2. all applicable laws including any applicable product safety, customer, consumer protection and environmental laws;

iii.  good industry practice; and

1. all reasonable instructions and directions given by Client.
2. Upon receipt of any goods the client will have a reasonable time of up to 14 days to inspect their goods. If any products are found to be DOA (dead on arrival) the client has the responsibility of advising the supplier within this time frame so a replacement can be obtained. Any latent defects found in any products will come under the items warranty and will only be relevant within that time frame.
3. Once the warranty has expired the responsibility of any repair or replacement will become responsibility of the client. It is important to note that all warranty decisions are made by the manufacturer of the item and if no fault is found the supplier reserves the right to charge the client for any costs incurred for the investigation.

31.8.   If any Products due to a genuine error has been supplied which do not meet the requirements of the relevant proposal, letter of agreement or statement of works, whether at the time of Delivery or subsequently (and regardless of whether the Products have been accepted), the Supplier will organise a replacement within 14 days of Client’s request. This timescale is dependent on supplies of the product.

31.9.  The client has the right to reject delivery if a product is damaged on arrival. The client must inform the supplier of the damage and supply evidence i.e. photographs. They may return the goods to the supplier when the evidence has been provided and a collection has been agreed. Alternative products will only be supplied on receipt of the returned goods. The client has the right to decline further purchases because of damaged goods.

31.10. The Supplier will use its reasonable endeavours to comply with any date or dates for delivery of Services and/or Products but time, shall not be of the essence of the order and any dates shall constitute only statements of expectation and shall not be binding. If notwithstanding that the Supplier has used reasonable endeavours it fails to deliver the Services and/or Products by such date or dates, such failure shall not constitute a breach of any

32 Publicity

            The Supplier shall be entitled to disclose the name of the Client as a user of the Services on the Supplier’s website or otherwise, or make any public statement publicising that the Client uses the Services subject to the statement being agreed with the Client prior to release.

• Entire Agreement
  8. Save as provided by the following provisions of this Clause 8.6, and 8.7, this Agreement supersedes all prior agreements, arrangements and undertakings between the parties and it constitutes the entire agreement between the parties relating to its subject matter within the Agreement and Schedules.
  9. This Agreement or any Schedule may not be modified except by an instrument in writing signed by the duly authorised representatives of the parties.

• The obligations of the parties under any non-disclosure agreement pre-existing this Agreement shall remain in full force and effect in so far as there is no conflict between the same.

1. The parties confirm that they have not entered into this Agreement on the basis of any representation that is not expressly incorporated into this Agreement but nothing in the Agreement is intended to or will limit or exclude either party’s liability for fraudulent misrepresentation made by the other.

• Severance

34.i.   If any court or competent authority finds that any provision of this Agreement (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of this Agreement shall not be affected.

34.ii.   If any invalid, unenforceable or illegal provision of this Agreement would be valid, enforceable and legal if some part of it were deleted, the Parties shall negotiate in good faith to amend such provision such that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the Parties’ original commercial intention.

• No Waiver
  1. No failure or delay by either party in exercising any of its rights under this Agreement shall be deemed to be a waiver of that right, and no waiver by either party of a breach of any provision of this Agreement shall be deemed to be a waiver of any subsequent breach of the same or any other provision.
  2. A waiver of any term, provision or condition of this Agreement shall be effective only if given in writing and signed by the waiving party and then only in the instance and for the purpose for which any waiver is given.
• Third Party Rights
  1. Nothing in this Agreement is intended to confer rights on any third parties and accordingly the Contracts (Rights of Third Parties) Act 1999 shall not apply to this Agreement.
  2. This Agreement shall continue and be binding on the transferee, successors and assigns of either party as required.
• Notices
  1. All notices under this Agreement shall be in writing and be deemed duly given if signed by, or on behalf of, a duly authorised officer of the Party giving the notice.
  2. Notices shall be deemed to have been duly given:
     1. when delivered, if delivered by courier or other messenger (including recorded delivery mail) during normal business hours of the recipient; or
     2. when sent, if transmitted by e-mail (to info@outbound.group) and a successful transmission report or return receipt is generated; or
     3. on the fifth business day following mailing, if mailed by national ordinary mail, postage prepaid; or
     4. on the tenth business day following mailing, if mailed by airmail, postage prepaid.

In each case addressed to the most recent address or e-mail address notified to the other Party.

• Service of any document for the purposes of any legal proceedings concerning or arising out of this Agreement shall be effected by either party by causing such document to be delivered to the other party at its registered or principal office, or to such other address as may be notified to one party by the other party in writing from time to time.

• Termination Assistance

Termination for Convenience

1. The Supplier shall, on request from the Client at any time after the expiry of one hundred and eighty days (180 days) from the Term, prepare or update a detailed plan for the orderly transition of the Services from The Supplier to the Client or its nominated Replacement Supplier (Exit Plan), if requested by the Client in writing.
2. The Client may, at any time before expiry or termination of all or any part of the Agreement for any reason request the Supplier to provide the Transition Services or otherwise to offer reasonable assistance in transitioning the Services to the Client or a Replacement Supplier (by providing the Transition Services). The Supplier shall, in consideration of a reasonable fee (to be agreed in advance), provide such Transition Services for a maximum period of three months, or until expiry or termination of the Agreement.
3. The Client shall:
   1. accept assignments from the Supplier or join with the Supplier in procuring a novation of this Agreement and/ or any of the Schedules; and
   2. once a Transition Service is novated or assigned to the Client or the Replacement Supplier, carry out, perform and discharge all the obligations and liabilities created by or arising under that this Agreement and/ or any of the Schedules and exercise its rights arising under that this Agreement and/ or any of the Schedules or, as applicable, procure that the Replacement Supplier does the same.

• Confidentiality
  1. Each Party agrees and undertakes that it will treat all Confidential Information disclosed to it by the other Party in connection with the Schedule(s) as strictly confidential and shall use it solely for the purpose intended by the Schedule(s) and shall not, without the prior consent of the other Party, publish or otherwise disclose to any third party any such Confidential Information except for the purposes intended by the relevant Schedule(s).
  2. To the extent necessary to implement the provisions of any Services or Schedule(s), each Party may disclose Confidential Information to its employees, agents, sub-contractors and professional advisers, in each case under the same conditions of confidentiality as set out in Clause 39.

• The obligations of confidentiality set out in this Clause 39 shall not apply to any information or matter which is in the public domain other than as a result of a breach of this Agreement:

1. was in the possession of the receiving Party prior to the date of receipt from the disclosing Party or was rightfully acquired by the receiving Party from sources other than the disclosing Party;
2. is required to be disclosed by law, or by a competent court, tribunal, securities exchange or regulatory or governmental body having jurisdiction over it wherever situated; or
3. was independently developed by the receiving Party without use of or reference to the Confidential Information.
4. The Receiving Party agrees that:
5. It will only make the confirmation information available to those of its staff who are actively involved in the execution of its obligations under this agreement;
6. It has taken responsible steps to ensure that all staff who need to be given access to confidential information comply with this clause;
7. It will treat the confidential information of the Disclosing Party with security measures no weaker than those with which the receiving party treats its own information.
8. The obligations of this clause will not apply to:
9. Information that is freely available or becomes available in the public domain through no breach or confidentially by the receiving party;
10. Information that subsequently becomes available to the Receiving Party from a source other than the Disclosed Party, free from obligation of confidentiality and in circumstances not involving breach of this agreement.

• Domain names
  1. If the Client instructs the Supplier to obtain a domain name for the Client, the Supplier shall act as an agent for the Client in dealing with the relevant domain name registration authority. The contract for the domain name shall be between the Client and the relevant domain name registration authority and the Client agrees that it shall be solely responsible for renewals, and for legal, technical, administrative, billing or other requirements imposed by the relevant domain name registration authority (and relevant costs and expenses thereof).
  2. The Supplier gives no warranty that the domain name requested shall not infringe the rights of any third party and all such enquiries shall be the responsibility of the Client. The domain name shall form part of the Client’s Intellectual Property Rights for the purposes of the Agreement or any Schedule.

• If the Supplier licenses to the Client an IP address as part of the Services, such IP address shall (to the extent permitted by law) revert to the Supplier after expiry or termination of the Agreement or any Schedule for any reason, whereupon the Client shall cease using the address. At any time after such expiry or termination, the Supplier may re-assign the address to another user.

• Service Review, Quarterly Service Review and Governance
  1. The Client’s Project or Service Delivery Manager and the Supplier’s Success Manager shall have regular monthly meetings (Monthly Meetings) to monitor and review the performance of the Contract, to discuss any changes proposed in accordance with clause 6 and to discuss the Service Level Arrangements. These meetings shall be minuted by the Supplier’s Success Manager and copies of those minutes shall be circulated to, and approved by, both parties.
  2. Before each Monthly Meeting, the Client’s Project or Service Delivery Manager shall notify the Supplier’s Success Manager, and vice versa, of any problems relating to the provision of the Services for discussion at the Monthly Meeting. At each such meeting, the parties shall agree a plan to address such problems. In the event of any problem being unresolved or a failure to agree on the plan, the matter shall be resolved in accordance with the Dispute Resolution Procedure. Progress in implementing the plan shall be included in the agenda for the next Monthly Meeting.

• A review meeting to assess the performance of the Supplier in the delivery of the Managed Services shall be held at quarterly intervals (Quarterly Business Review). Each meeting shall be attended by senior representatives of the Client and of the Supplier, together with the Client’s Project or Service Delivery Manager and the Supplier’s Success Manager.

1. The Client and the Supplier shall review the Service Level Arrangement for each Schedule at each Review Meeting and shall, in accordance with the agreed change request procedure, agree modifications to reflect changes in the Client’s requirements for the Managed Services.

• Security
  1. The Supplier shall ensure at all times that appropriate safety and security systems, policies and procedures are maintained and enforced to prevent unauthorised access or damage to, and to ensure the business continuity of, any and all Services, The Supplier’s System and related networks or resources and the Client Data, in accordance with Good Industry Practice, including an incident management process which shall enable the Supplier, as a minimum, to discover and assess Incidents, and to prioritise those Incidents, sufficient to meet its reporting obligations under clause 42(iv) (a).
  2. The Supplier shall ensure that the Supplier’s System is designed, maintained and upgraded at all times so as to Mitigate against Incidents. The parties agree that if Incidents are detected or discovered, each of them shall co-operate with the other to Mitigate the Incident and, particularly if the Incident causes or threatens the loss of operational efficiency, loss or corruption of Client Data, or the reduced management of risks posed to the security of the Assets, the Supplier’s System, or the Client’s Operating Environment, the parties shall assist each other to mitigate any losses and restore the Services to their original operating and security efficiency. The costs of complying with this clause 42(ii) shall be apportioned between the parties on a pro rata basis according to fault.

• The Client shall promptly inform the Supplier if it suspects or uncovers any Incident and, subject to the cost allocations in clause 42 (ii), shall use all commercially reasonable endeavours to promptly mitigate such Incident.

1. The Supplier shall:

a.notify the Client immediately it becomes aware of any Incident and respond without delay to all queries and requests for information from the Client about any Incident, whether discovered by the Supplier or the Client, in particular bearing in mind the extent of any reporting obligations the Client may have under the Network and Information Systems Regulations 2018 (NIS Regulations) and Data Protection Legislation and that the Client may be required to comply with statutory or other regulatory timescales;

1. promptly co-operate with any request for information made in respect of:

• any Incident;
• any of the policies referred to in clause 42.1; or
• any requests for information, or inspection, made by a regulator with competent jurisdiction over the Client (including in connection with the NIS Regulations or Data Protection Legislation, if applicable).
  1. The Supplier does not and cannot control the flow of data to or from its network and other portions of the internet. Such flow depends in large part on the performance of internet services provided or controlled by third parties.  At times, actions or omissions of such third parties can impair or disrupt connections to the internet (or portions thereof).  Whilst the Supplier will use commercially reasonable efforts to take all actions it deems appropriate to remedy and avoid such events, the Supplier cannot guarantee that such events will not occur.  Accordingly, the Supplier disclaims any and all liability resulting from or related to such events.

39. Subject to any duties of confidence, the Client shall provide to the Supplier, in the form reasonably required by the Supplier, such information as the Supplier reasonably requests, from time to time, for the purpose of allowing the Supplier to comply with any security requirements for the purposes of clause 39.

• Counterparts
  1. This may be executed in any number of separate documents or digital e-signature or separate counterparts each in the like form, each of which shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.
  2. Either Party may execute this Agreement by signing any one (1) or more of such documents or counterparts. No counterpart shall be effective until each party has executed and delivered at least one counterpart.
• Dispute Resolution

 

44.1.    If a dispute arises under or in connection with this agreement and, or Schedule (Dispute), including any Dispute arising out of any amount due to a party, then before bringing any legal proceedings or commencing any other alternative dispute resolution procedure in connection with such Dispute, a party must first give written notice (Dispute Notice) of the Dispute to the other party describing the Dispute and requesting that it is resolved under the dispute resolution procedure described in this clause 44.

44.2.    If the parties are unable to resolve the Dispute within 90 days of delivery of the Dispute Notice, each party shall promptly (and in any event within five Business Days):

44.3.i. appoint a representative who has authority to settle the Dispute and is at a higher management level than the person with direct responsibility for the administration of this agreement (Designated Representative); and

44.3.ii. notify the other party of the name and contact information of its Designated Representative.

44.4. Acting reasonably and in good faith the Designated Representatives shall discuss and negotiate to resolve the Dispute, including agreeing the format and frequency for such discussions and negotiations, provided that all reasonable requests for relevant information relating to the Dispute made by one party to the other party shall be complied with as soon as reasonably practicable).

44.5. If the parties are unable to resolve the Dispute within 30 days after the appointment of both Designated Representatives, either party shall apply to the Chartered Institute of Arbitrators (CIARB) to appoint as appropriate a mediator or expert determiner to facilitate with the Dispute. In the case of appointing an Expert Determiner the Determiner’s decision can be binding or non-binding depending on the mutual agreement of the Parties. In the absence of agreement by the Parties CIARB will appoint the expert determiner on the basis that their decision is final and binding upon the Parties.

 

Arbitration Clause

• In the event that all or part of the contract is performed outside the legal jurisdiction of England and Wales, and/ or the Client is a legal entity in a legal jurisdiction other than England and Wales then clause 44.7 below shall apply instead of clause 44.5 above.

 

• Any disputes arising out of, or in context with this Agreement or related to any agreement concluded as a result of this Agreement shall be settled by Arbitration using The London Court of International Arbitration (LCIA. The seat of the arbitration tribunal shall be under the rules of the LCIA, and the English language shall be the language of the contract and proceedings:

1. The number of arbitrators shall be one unless the Parties mutually agree in writing to three arbitrators.
2. The seat, or legal place, of arbitration shall be London.
3. The language to be used in the arbitral proceedings shall be English.
4. The governing law of the Agreement shall be the substantive law of English.
5. The governing law of this Agreement is the substantive law of England and Wales.
   • In the event that the Dispute is not determined by clause 44.5 or 44.7 then either party may proceed with any other available remedy.
   • Notwithstanding any other provision of this agreement, a party may seek interim or other equitable relief necessary (including an injunction) where damages would be an inadequate remedy.

• Law and Jurisdiction
  • This Agreement, and disputes or claims arising out of or in connection with it (including any non-contractual matters and obligations arising therefrom or associated therewith) shall be governed by, and construed in accordance with, the laws of England and Wales.
  • Any dispute, controversy, proceedings or claim between the parties relating to this Agreement (including any non-contractual matters and obligations arising therefrom or associated therewith) shall fall within the exclusive jurisdiction of the courts of England and Wales.
•  Succession
  • This Agreement and its Schedules shall be legally binding upon the Parties successors and assignees.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ANNEX 1

Standard Charges

 

Commercial Rate Card 

Commercial rates for resources, reviewed annually, the Supplier has the right to change these rates in writing to the Client.  Please contact your outbound representative for our current rates:

Outbound Standard Rate Card

 

Roles	Daily Rate	Hourly Rate	Out of hours
Add-hoc Remote Support	Please contact your CSM	Please contact your CSM	Please contact your CSM
Jr On Site Support	Please contact your CSM	Please contact your CSM
Snr On Site Support	Please contact your CSM	Please contact your CSM
Software Developer Technical Consultant Project Manager	Please contact your CSM	Please contact your CSM
Senior Technical Consultant Programme Manager	Please contact your CSM	Please contact your CSM
Security Consultant	Please contact your CSM	Please contact your CSM
IT Director Principal Consultant Solutions Architect	Please contact your CSM	Please contact your CSM
Data Scientist	Please contact your CSM	Please contact your CSM
CTO or Chief Architect	Please contact your CSM	Please contact your CSM
NED	Enquire

 

Rate Card Terms

• Pricing displayed excluded VAT.
• Minimum onsite charge – 3 hours.
• Our daily rates do not include travel, accommodation and subsistence, travel or expenses are charged at cost.
• Part days will be invoiced to the nearest half or full day.
• Offices within a 15-mile radius with not be charged mileage.
• Travelling time for offices that exceed 30 miles will be charged at standard hourly rates.
• Mileage is charged at standard HMRC rate per mile.
• E&OE.

 

 

 

 

 

 

 

 

 

SCHEDULE 1

 IT SUPPORT SERVICES AGREEMENT

 

 

Your IT Support and costs are outlined in your Statement of Works or Managed Services Proposal which has been signed and agreed.

 

 

Any amendments to the amount of users stated in your initial commitment during the term of this agreement  will be reflected in the monthly amounts invoiced accordingly.  The term of this contract and cost commitment for this agreement is 12 months.

Service level agreement

The Supplier is supplying the Services to the Client based on the requirement highlighted under the Statement of Works.  Each Party acknowledges that the Supplier will provide the Services to the client on a non-exclusive basis.  The supplier is under no obligation to provide Services to the client until a Statement of Work has been agreed between the Parties. If the Parties reach agreement, then they will enter into a written Statement of Work that will document the Services agreed to be performed by the Supplier.

 

The Supplier will provide the Services remotely, unless any Service Locations are agreed between the Parties and specified in the applicable Statement of Work. Any on site work is chargeable at the rate charged detailed in Annex 1

 

Any work outside the statement of works is chargeable and classed as an unsupported item.  These are would be given an estimate of charges and in order to proceed be confirmed in writing or accept via quotation or Statement of works.

 

The Supplier will provide the Services to meet or exceed the Service Levels, as set out in the table below. The Parties agree that the Supplier will categorise an issue as critical, high, medium, or low at its sole discretion. The Supplier will ensure that all Services are performed:

1. with reasonable skill and care to standards of current practice that would reasonably be expected in the industry for the same or similar services;
2. that all information provided to Client as part of the Services is, in all material respects, accurate and complete.
3. The Supplier will carry out and perform the Services at all times in material compliance with: all specifications and timelines established in any Statement of Work; Applicable Laws; and the provisions of this Agreement.

The client will co-operate with the Supplier in all matters relating to the Services;  they will provide, , its agents, subcontractors, consultants and employees, in a timely manner and at no charge, access to the clients’ data and other facilities as are reasonably required by the Supplier;  to provide to the Supplier in a timely manner all documents, information, items and materials in any form (whether owned by the client or a third party) required under a Statement of Work or otherwise reasonably required by the Supplier in connection with the Services and ensure that they are accurate and complete in all material respects.  To obtain and maintain all necessary licences, consents and permissions and comply with all relevant legislation as required to enable the Supplier to provide the Services, including in relation to, the use of all Client Intellectual Property Rights, the processing of personal data and the use of the Information Systems required in order for the supplier to provide the Services.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The priority given to an event that will establish how rapidly it is planned for response will be set depending upon a mixture of the incident severity and impact.

 

Critical – 1 Hour SLA

High – 1 Hour SLA

Medium – 4 Hour SLA

Low – 16 Hour SLA

 

Incident Priority	Severity
	4- Low	3-Medium	2- High	1-Critical
	Issue does not impact the user from performing day to day duties	Issue stops the user from performing a segment of their duties.	Issue stops the user from performing vital time sensitive functions	Service or key segment of a service is unavailable

 

Microsoft Services

The supplier will supply the Client with licenses for Microsoft Office 365 Services as agreed as part of the Outbound Secure bundle.  The Client acknowledges and understands that the supplier is a Cloud Service Provider “CSP” and reseller of licenses for Microsoft Office 365 and does not own or operate the services and therefore the actual license agreements and uptime guarantees are directly between the Client and Microsoft. A link to Microsoft’s Customer License Agreement and SLA can be found on the Microsoft website (https://www.microsoft.com/licensing/docs/customeragreement).  By agreeing to this Agreement, the Client agrees to the Microsoft License Agreement referenced. 

These terms can be modified by Microsoft at any time and will be available via the link above.  It is the Client’s responsibility to check for any changes to the Microsoft Customer License Agreement

License subscriptions which are  included as part of the Secure Bundle will be billed as part of your monthly costs as noted in schedule  1.

The Secure Bundle works on an annual commitment basis and follows the Microsoft rules regarding additional licenses.  Your current commitment in Schedule 1 is the minimum requirement you have committed to for the year.  You can add licenses to this Bundle but you cannot reduce any numbers until renewal. At the end of the software subscription term, it will automatically renew for a further year based on the current licenses unless we are advised prior to the renewal date. If the Client chooses to not renew, the Client must notify Outbound three month (sixty days) prior to the date of renewal.

 

Any additions or amendments outside the secure bundle will be invoiced as a separate line item on your monthly invoice and some cases may not have the same commencement date and contract duration time, which may result in contract periods which are not concurrent with the original agreement, and may not have concurrent billing or termination periods.

This agreement is used in conjunction with this agreement and the supplier standard terms of business located

 

on the website. – https://outbound.group/business-terms-conditions/ 

 

 

Managed services 365 services includes:

Administration and maintenance of your Microsoft 365 Business Premium licenses, annual Microsoft 365 assessment and regular updates on Microsoft 365 updates and roadmap.

A 3^rd party cloud-to-cloud backup solution for Microsoft 365 data across Exchange, OneDrive, Teams and SharePoint is backed up multiple times per day automatically and retained up to indefinitely. 

Endpoint Protection, Detection and Response (EPDR) software solution is put in place to enhance endpoint security.

Multi Factor Authentication (MFA) is configured to ensure applications are integrated with Single Sign On and secured with multi-factor authentication.

Patch Management is included whereby automatically patches for both operating system and some 3^rd party solutions.

Device Encryption is enable to ensure encrypt end user devices for compliance. 

 

 

Cyber Essentials Accreditation:

 
Cyber Essentials is the UK Government’s recommended framework for minimum Cyber Security standards. At Outbound, we strive to ensure security is a pivotal part of all our services which is why we include the cost of this accreditation and support to ensure you pass.  Outbound will provide pre-assessment consultancy, help and advice during the Cyber Essentials process and the actual assessment.  The client understands that the Accreditation is governed by a third party (IASME) and the supplier is a reseller of this of this certification.  All rules regarding this these certifications are highlighted once the client has passed the audit or assessment and received their certificate.

 

Under the Outbound secure plus, The standard Cyber Essentials Accreditation is included in your bundle.  If you wanted to enhance your knowledge and protection you can apply for Cyber Essentials Plus,  This would be a separate project and chargeable according to the size of your organisation.  .  This advanced certification is more in-depth and would reacquire days for scope and planning.  Please contact your Outbound representative  for more information please contact sale@oubound.group.

 

The Cyber Essentials certification process is the first step to cyber security in the UK. It outlines the security controls organisations must have to protect their data

 

The 5 Cyber Essential Fundamentals are

• Firewalls
• Patch management
• Malware protection
• Access control
• Secure configuration

 

 

This accreditation is for a period of one year to cover the term of your bundle and will need to be renewal at the end of the 12 months.  Failure to renew your accreditation at the end of the term will mean your certification is no longer be valid and shouldn’t be used after the expiry.  It is important to note that  IASME check on a regular basis all company’s hold an accreditation to ensure that the certification rules are correctly followed.  It is the Client responsibility to ensure that the rules and requirements for promotion and controls are followed.