Terms and Conditions
The Supplier has experience and expertise in providing the hardware maintenance and software support services and the Customer wishes to receive such services.
Initial term: 3 months silver / 12 months Gold / 12 months Platinum
The definitions and rules of interpretation in this clause apply in this agreement.
'Business Day' a day other than a Saturday, Sunday or a public holiday;
'Courier Charge' £15 or such rate as subsequently notified;
'Fault' any defect, error, failure or other problem in the Software which causes the Software not to function in accordance with its specifications in any material way, but expressly excluding compatibility and interface issues with any hardware to the extent that such compatibility and interface issues are due to an error or defect in such hardware;
'Hardware' the hardware items owned or otherwise used by the Customer, as assessed by the Supplier as suitable and as listed in the Schedule of Designated Hardware and Software, such Software must be supported by the manufacturer;
'Initial Audit' the audit by the Supplier prior to engaging into this agreement in order to assess the suitability of the Customer's Hardware and Software, to be listed in the Schedule of designated Hardware and Software comprising what the Supplier will support pursuant to this agreement;
'Know-how' information which the Customer owns or possesses, which the Supplier requires for the provision of the Services;
'Products' the Hardware and/or Software items to which the Services will apply according to the terms and conditions of this Agreement;
'Schedule' the one or more Schedules attached to this Agreement and which form part of this Agreement;
'Services' the Hardware maintenance and/or Software support services provided by the Supplier to the Customer on the terms and conditions of this Agreement;
'Site' the location where the Products are installed as agreed by the Supplier and identified in the schedule;
'Software' the third party software incorporated in the Hardware or otherwise used by the Customer and assessed as suitable for support by the supplier and listed in the schedule of designated Hardware and Software: such software must be supported by the manufacturer;
'Support Charge' the charge by the supplier to the Customer for provision of the Services as specified in the schedule
'Support Hours' the suppliers normal working hours of 08.30 am to 5.30 pm GMT on a business day
'Supplier Maintenance and Support Centre' the supplier's address and telephone number details;
'System' the designated Hardware, Software and associated operating system software used by the Customer which may comprise one or more computer systems
This Agreement commences on the Start Date and will continue for an initial period as set on page 1 above ('Initial Term') after which it will remain in force until terminated by either party giving at least 1 months' notice of termination to the other, and otherwise subject to the termination pro- v!isions of this Agreement ('Term').
4.1 By ticking the agreement box the Customer agrees to be bound by this agreement the Customer confirms that the contents of the Schedules are accurate and that the Supplier is entitled to invoice the Customer at the invoice address specified above, for maintenance of the Products and in respect of the designated Hard- ware and Software listed in the Schedules. The Customer will be responsible for monitoring pay- ment of such invoices in accordance with the terms and conditions of this Agreement.
4.2 Where Products are added to, or deleted from the Schedules at any time during the Term of this Agreement, this will be confirmed to the Customer in a letter from the Supplier, and invoicing will take account of such additions or deletions. Any such revisions will be recorded in writing and supplement and / or supersede the existing Schedules.
5 Cover All Services will be performed within the Support Hours. Out-of-hours Services can be provided by arrangement and will be charged for at the Supplier's current UK extended cover rates.
6 Software Services
Subject to the Service Level provided under this agreement the Supplier will provide the following Services in respect of the Software:
6.1 remote Fault diagnosis and where possible recommendations for correction subject to the limita- tions imposed by contractual restrictions of any third party, following the reporting of any Software problem by telephone by the Customer to the Supplier's telephone helpline support facility. The Customer shall provide as much detail as is reasonably possible regarding any reported Fault to allow the Supplier to make a preliminary decision regarding the severity and urgency of the Fault being reported and the Supplier shall classify each Fault as follows:
o Critical Fault: a Fault that has resulted in the Software being unusable for multiple (ie 2 or more) users, either because the Software will not function or it cannot be used reli- ably, e.g. through incorrect calculations.
o High Impact Fault: either a single user is unable to use the Software or multiple users are adversely impacted whereby part of the Software cannot be used, or a workaround causes significant operational difficulty.
o Medium Impact Fault: Fault which has a business impact but workaround is available.
o Low Impact Fault: Fault which has minimal business impact in the short term.
The Supplier undertakes to and will use its reasonable endeavours to resolve a Fault within the estimated time scales below within the Support Hours. The parties agree that the resolution times a!re not guaranteed and the Supplier shall in no way be liable for any delay in resolving any Fault:
Category of Request Respond By (from Fault being reported by Customer) and Start Working on Resolving
Critical Fault 2 hours
High Impact Fault 3 hours
Medium Impact Fault 1 business day
Low Impact Fault 5 business days
For all Faults the Supplier will use all reasonable endeavours to generate a fix by replacing or modifying the Software (subject to restrictions in the relevant Software licence(s)) to conform to its specification and transmitting the modification to the Customer as soon as reasonably possible. Where feasible, the Supplier may provide a temporary workaround to the Customer. In no event will the Supplier be required to correct a Fault reported by the Customer, and the Supplier re- serves the right to abandon attempts at a fix where, in the Supplier's sole opinion, a successful outcome cannot be achieved.
Diagnosis and solution of a Fault will generally be carried out remotely from the Site. If it becomes necessary to carry out the Services with access to the Customer's Hardware, such work will be undertaken at the Supplier's address. The Customer shall be responsible for the prompt and ap- propriate packaging and despatch through an insured and reputable courier company at its own expense. The Supplier having fixed the Fault will then arrange return of the Hardware via nor- mally DHL or other reputable courier and the Courier Charge shall be added to the Customer's next due payment;
6.2 telephone support during the Support Hours on the routine use and operation of the Software;
6.3 telephone advice and assistance during the Support Hours on user procedures and on ideas and methods intended to assist the Customer in obtaining the best possible use from the Software; and
6.4 assistance with installing a new version of the Software at the Site during the Support Hours and a!dvice on use of the new version.
7 Hardware Services
The Supplier will provide the following Services in respect of the Hardware:
7.1 the Supplier will use all reasonable endeavours to repair and maintain Hardware within  work- ing hours from the time of receipt of the Customer's call or if applicable receipt of the Customer's Hardware if it needs to be couriered to the Supplier. Other response options are available at addi- tional cost as agreed between the parties;
7.2 the Supplier will supply all labour during the contracted cover time and parts and materials neces- sary to maintain the Hardware in good working condition;
7.3 Services include the diagnosis and correction of equipment malfunctions and failures. Remedies may consist of temporary procedures to be followed by the Customer while a permanent repair or remedy is being sought. If the Supplier determines that additional parts or resources are required, provision of the Services may be interrupted and will resume as soon as such parts or resources are available;
7.4 unless otherwise agreed by the parties, it shall be the Supplier's responsibility to source all re- placement parts. In the event replacement parts are sourced and paid for by the Supplier, such replacement parts shall be provided to the Customer either on an interim loan or on an exchange basis. Such parts may be new or functionally equivalent to new. Where parts are paid for and re- placed by the Supplier, the replaced parts shall become the property of the Supplier and the re- placement parts shall become the property of the Customer once the Customer has reimbursed the Supplier in full for such replacement parts;
7.5 a telephone help-line support facility is available to the Customer during the Support Hours or agreed extended hours of cover, for the purposes of reporting equipment malfunctions; and
7.6 following any request from the Customer, the Supplier will decommission any Hardware and re- install it at a new location subject to the Customer giving the Supplier reasonable notice and agreeing to pay the Supplier's then current charges for this service, the Customer remaining responsible for any shipping arrangements, insurance and other charges or expenses required in order to move the Hardware. Moving any Hardware to a different location may result in an in- creased maintenance charge for that Hardware. In this event, the Supplier will notify the Customer of the new charge and the Customer will have the option, within 14 days of such notification, to remove such Hardware from this Agreement, subject to remaining responsible for payment of any outstanding maintenance charges applicable to the Hardware during the current operating period o!f this Agreement.
8 Service Exclusions
8.1 The Supplier reserves the right not to provide the Services and to charge for costs and expenses incurred if a call is not warranted or access to the System is hindered.
8.2 The Services do not include:
8.2.1 operating supplies and accessories such as magnetic media and disk packs and other consumables, which must be paid for by the customer;
8.2.2 electrical or signal cabling work external to the system, or maintenance of accessories, alterations attachments or other devices not furnished by the supplier, or nstallation, cecommissioning, removal, relocation of Products, unless specifically provided for in the Schedules;
8.2.3 Hardware and Software not covered by this agreement.
8.3 The Supplier reserves the right at any time after the Initial Term of this Agreement to give 90 days' notice to the Customer that a Product cannot continue to be properly or economically repaired because of excessive wear or deterioration. In such event the Supplier will provide the Customer with an estimate of reconditioning charges, and if the Customer does not elect to have the Product r!econditioned, the Supplier may delete the Product from the Schedule.
9.1 The Supplier will use its reasonable endeavours to perform the Services promptly but no warranty is given in respect of any times for response or performance by the Supplier, and time will not be of the essence.
9.2 The Supplier is not liable for delay arising from any industrial dispute or any cause outside its reasonable control and any agreed timescale will be subject to reasonable extension in the event of such delay. If such delay or failure continues for at least 90 days either party will be entitled to terminate this Agreement by notice in writing to the other.
9.3 Provision of the Services does not imply any guarantee or representation that the Supplier will be able to assist the Customer in achieving any results from any Products which are not technically feasible. Subject to this, any services which are outside the scope of this Agreement will, at the Customer's request and at the Supplier's sole option, be provided on such terms as the parties may agree from time to time and shall incur additional charges. operating supplies and accessories such as magnetic media and disk packs and other consumables, which must be paid for by the Customer; electrical or signal cabling work external to the System, or maintenance of accessories, alterations, attachments or other devices not furnished by the Supplier, or installation, decommissioning, removal, relocation or reconfiguration of Products, unless specific- ally provided for in the Schedules; Hardware and Software not covered by this Agreement.
9.4 Provision of the Services does not imply any guarantee that the Supplier will be successful in cor- recting any Software or Hardware malfunctions and the Supplier does not accept any liability in this connection.
9.5 The Supplier reserves the right to refuse to provide the Services at any time without refunding any sums paid by the Customer:
9.5.1 if any attempt is made, other than by the Supplier, to remove any defects or deal with any errors in the Products during the Term of this Agreement; or
9.5.2 if any development, enhancement or variation of the Products is carried out other than by the Supplier; or
9.5.3 if the Customer has failed to pay a Supplier's invoice in accordance with the provisions of this Agreement; or
9.5.4 if the Customer has failed to comply with any of its responsibilities under clause 10 of this Agreement; or
9.5.5 where, in the reasonable opinion of the Supplier, the Customer's system has ceased to b!e capable of running the Software successfully for any reason.
10 Customer responsibilities and acknoweldgements
The Customer will:
10.1 use the Products correctly and in accordance with their operating instructions and with suitable operating supplies;
10.2 designate a primary contact appropriately qualified and trained to an acceptable standard author- ised to request Services, and inform the Supplier accordingly. Authorised use of the telephone helpline is limited to these designated contacts;
10.3 maintain procedures to facilitate reconstruction of any lost or altered files, data or programs to the extent deemed necessary by the Customer, and the Customer agrees that the Supplier will not be liable under any circumstances for any consequences arising from lost or corrupted data, files or programs. The Customer is solely responsible for carrying out all necessary backup procedures for its own benefit, to ensure that data integrity can be maintained in the event of loss of data for any reason;
10.4 be solely responsible for the security of its confidential and proprietary information, and not dis- close such information to the Supplier except on a 'need to know' basis for the purposes of the Supplier's performance of the Services;
10.5 notify the Supplier promptly of any Product malfunction;
10.6 control the site environmental conditions in which the Customer uses the Software and Hardware in accordance with any environmental operating ranges specified by the Supplier or other Product manufacturer;
10.7 regularly perform the various Customer routine and preventative maintenance and cleaning oper- ations described in the applicable user guides or as advised by the Supplier including but not lim- ited to any operating and diagnostic checks and the regular inspection and, if necessary, cleaning, of disk packs and cartridges. The cost of rectifying any damage caused to the System by not ob- serving this undertaking will not be covered by this Agreement;
10.8 keep records of the System's usage and performance if requested by the Supplier, in a mutually agreed format;
10.9 observe appropriate safety precautions in replacing parts provided under this Agreement;
10.10 provide the Supplier with access to and use of such of the Customer's information (including any Know-how) and facilities reasonably necessary to service the Products;
10.11 make all the relevant Products freely available to the Supplier during any agreed preventative maintenance period to enable the Supplier to carry out the Services;
10.12 have a Customer representative who is familiar with the Customer's organisation, operations, pro- cedures and business practices present at all times during the performance of remedial and pre- ventative maintenance Services;
10.13 provide ready access to a telephone on which external calls connected with the Services can be made and received by the Supplier's personnel;
10.14 ensure that only properly trained employees operate or use the System in accordance with the operating instructions and manuals supplied;
10.15 not make any modification or addition to the System, except with the Supplier's consent, which shall not be unreasonably withheld;
10.16 provide telephone and Internet facilities to the Supplier's requirements for remote investigation of Software defects;
10.17 install the latest applicable software revisions and enhancements to the Software as soon as reasonably practicable, and in any event within 6 months, unless the parties agree otherwise;
10.18 be solely responsible for ensuring that all consents and licences are obtained and maintained in respect of the Hardware and the Software necessary for the performance of the Services by the Supplier, and warrant as such;
10.19 in the event that Hardware and or Software has to be repaired at the Supplier's site, ensure that this is properly packaged and addressed to the Supplier at the Customer's expense and liability;
10.20 acknowledges that from time to time the Supplier will need to click and agree to various manufac- turer standard terms and conditions relating to use and licence by the Customer of the designated Hardware and Software and accordingly the Customer agrees that the Supplier may do so; and
10.21 warrant that the Hardware and the Software will by the Start Date be in reasonable working order a!nd condition for the purpose of performing the Services.
11 Charges and payment terms
11.1 The Customer will be invoiced monthly in advance for the Support Charge. Expenses and other charges will be invoiced monthly in arrears. All invoices are payable net 30 days from receipt. All charges are exclusive of VAT and any similar taxes, which will be applied in accordance with pre- vailing legislation in force at the tax point date.
11.2 Payments which are not received when payable will be considered overdue and remain payable by the Customer together with interest at 4% above the base rate for the time being of Lloyds TSB bank for late payment from the due date to the date of actual payment, whether before or after any judgment, and independent of such judgment. This interest will accrue on a daily basis and be payable on demand.
11.3 Notwithstanding the above provision for late payment, in this event the Supplier may at its option, and without prejudice to any other remedy at any time after payment has become due, immedi- ately terminate or temporarily suspend this Agreement.
11.4 If the Supplier becomes entitled to terminate this Agreement for any reason, any sums then due to the Supplier will immediately become payable in full.
12.1 All prices quoted in this Agreement are exclusive of expenses incurred in the performance of this Agreement by the Supplier, which will be chargeable in addition.
12.2 Expenses include: travel to the Customer's Site (or other location) when applicable; magnetic media; data connection charges; couriers; freight; accommodation; and any other expenses reas- o!nably incurred by the Supplier in connection with this Agreement.
13 Variation of Charges
The Supplier will be entitled to increase its Support Charges upon the anniversary of the Com- mencement Date and thereafter not more than once in every successive period of 12 months dur- ing this Agreement upon giving not less than 60 days' notice to the Customer, subject to the Sup- plier being able to increase its Support Charges at any time on 30 days' notice to Customer to take account of any increase in any fees or charges payable by Supplier to third parties in connec- t!ion with provision of the Services
14.1 The parties recognise that under this Agreement they may each receive trade secrets and confidential or proprietary information of the other party, including but not limited to commercial informa- tion, products, customers, business accounts, finance or contractual arrangements or other deal- ings, program source and object codes. All such information which is either marked 'Confidential' or stated at the time of disclosure and subsequently confirmed in writing to be confidential consti- tutes 'Confidential Information'. Each party agrees not to divulge Confidential Information received from the other to any of its employees, officers, agents, subcontractors or other third parties without the prior written consent of the disclosing party except to the extent absolutely necessary to perform its obligations hereunder. This shall not prevent a party from using or disclosing any information:
14.1.1 which the party can prove was rightfully in the possession of such party prior to the commencement of the negotiations leading to this Agreement;
14.1.2 which is or enters into the public domain;
14.1.3 which is, and only to the extent that it is necessary, required to be disclosed by law provided that party notifies the other party prior to disclosure.
14.2 Each party shall ensure that its officers, employees, agents and subcontractors and any other third party to which Confidential Information is disclosed are bound by confidentiality obligations at least equal to those under this Agreement and each party agrees that any breach by such persons shall be deemed to be a breach by that party of its obligations hereunder. Nothing herein obligates e!ither party to disclose any Confidential Information to the other.
15 Ownership of Software, Data, Information and Know-how
15.1.1 The Customer owns or is authorised to sub-license all copyright and other intellectual property rights in the Software.
15.1.2 The Customer grants a non-transferable, non-assignable, non-exclusive licence to the Supplier to use the Software during this Agreement on the terms and conditions set out in this clause (the 'Licence') for the purposes of providing the Services.
15.1.3 Subject to clause 15.1.4, the Supplier and Customer agree that:
188.8.131.52 the Software and all copies of it will remain at all times the property of the Customer and that the Supplier is not entitled to any rights or interests in the Software other than those expressly granted in this Licence;
184.108.40.206 the Software is confidential information of the Customer and the Supplier will not dis- close any of the Software or supply any copies of any of it to any person other than in the performance of the Services under the terms of this Licence, including appropriate express obligations of confidentiality;
220.127.116.11the Supplier will not use any Software directly or indirectly otherwise than in connec- tion with providing the Services;
18.104.22.168 the Supplier will not permit any copy of the Software to be made except for reasons of providing the Services.
15.1.4 Copyright and all other intellectual property rights made by the Supplier in any modifications or enhancements to the Software will vest absolutely in the Supplier and the Supplier reserves the right to grant licences to use such modifications and enhancements to the Customer and any third parties.
15.1.5 The Customer will indemnify the Supplier against any expense, loss or damage incurred by the Supplier as a result of any claim or allegation that the Supplier's licensed use of the Software in- fringes the intellectual property rights of a third party.
15.1.6 Upon termination of this Agreement, the Licence will terminate, and the Supplier will return Soft- w!are in its possession (if any) to the Customer.
15.2 Data, Information and Know-how
15.2.1 The Customer grants the Supplier a non-exclusive, royalty-free licence to use Know-how for the purposes of fulfilling the Supplier's obligations to provide the Services. The Supplier undertakes not to use or otherwise deal with the Know-how for any other purpose.
15.2.2 For the avoidance of doubt, the parties agree that all data and information passed to the Supplier by the Customer or generated in the course of the Services will remain at all times the property of the Customer. The Customer grants to the Supplier a non-exclusive, royalty-free licence to use the Customer's data, information and Know-how as necessary for the purpose of fulfilling the Supplier's obligations under this Agreement.
15.2.3 The Supplier will not acquire any right in the Customer's data and information. The Supplier will take all necessary steps to ensure that it will not use nor reproduce any such data, information or Know-how which comes into its possession or control except as required to provide the Services under this Agreement.
15.2.4 The Customer will be responsible for maintaining secure copies and backups of all data and information.
16 Employment restriction
While this Agreement is in force and for a period of 6 months from its termination for any reason, the Customer will not actively solicit or canvass the employment of any person employed by or acting on behalf of the Supplier who was assigned to work on the System over a period of 3 months or more in the preceding 12 months. If the Customer is in breach of this condition, the Customer (recognising that the Supplier will suffer substantial damage) will pay to the Supplier by way of liquidated damages and not by way of penalty a sum equal to the gross annual sum paid to that person as salary or for services by the Supplier in the immediately preceding 12 months.
17 Indemnities and limits of liability
17.1 The Customer agrees that it has accepted these terms and conditions in the knowledge that the Supplier's liability is limited and that the prices and charges payable have been calculated accord- ingly. The Customer is advised to make its own insurance arrangements if it desires to limit further its exposure to risk or if it requires further or different cover. [The Supplier will be willing to provide reasonable assistance to the Customer if the Customer requests the Supplier to make enquiries about increasing cover on the Customer's behalf provided that the Customer recognises that this will result in increased charges being passed on to the Customer.]5
17.2 The Supplier will indemnify the Customer for fraud, fraudulent misrepresentations, direct physical injury and death caused by the negligence of its employees acting within the course of their em- ployment and the scope of their authority.
17.3 Except as expressly stated in this clause and elsewhere in this Agreement, any liability of the Supplier for breach of this Agreement will not exceed in the aggregate of damages, costs, fees and expenses capable of being awarded to the Customer the total price paid or due to be paid by t!he Customer under this Agreement.
17.4 Except as expressly stated in this Agreement, the Supplier disclaims all liability in contract or in tort (including negligence or breach of statutory duty) to the Customer or any third party arising out of or in connection with this Agreement, provision of the Services and the Customer's use of the Products including but not limited to liability for loss of revenue, loss of profits whether in the course of the Customer's business or otherwise, or arising from loss of data or goodwill, and in no event will the Supplier be liable to the Customer or any third party for special, indirect or con- sequential damages.
17.5 The Customer will indemnify and defend the Supplier and its officers, employees, subcontractors and agents in respect of any third party claims which arise from any Supplier performance carried out on the instructions of the Customer or its authorised representative or from any breach by the Customer of this Agreement.
17.6 The Customer will indemnify the Supplier in respect of any losses or expenses incurred by the Supplier as a result of any failure by the Customer to maintain adequate current licences for the software running on the System and for failure by the Customer to obtain and maintain all con- sents in respect of the Hardware and the Software necessary for the performance of the Services by the Supplier.
17.7 The parties agree that the Customer is the best judge of the value and importance of the data held on the Customer's computer system, and the Customer will be solely responsible for:
17.7.1 instituting and operating all necessary back-up procedures, for its own benefit, to en- sure that data integrity can be maintained in the event of loss of data for any reason;
17.72 taking out any insurance policy or other financial cover for loss or damage which may arise from loss of data for any reason.
17.8 If the Supplier fails to comply with its obligations during the Term of this Agreement then it will be entitled to be given a reasonable opportunity to correct any errors and to perform its obligations.
17.9 The Supplier makes no representations and gives no warranties, guarantees or undertakings concerning its performance of the Services except as expressly set out in this Agreement. All oth- e!r warranties, express or implied, by statute or otherwise, are excluded from this Agreement.
18 Data protection
In providing the Services to the Customer, the Supplier will comply with all relevant provisions of the Data Protection Act 1998 ('DPA'). The Supplier and Customer agree and acknowledge that, in performing the Services, the Supplier is acting as a Data Processor (as defined in the DPA) in re- lation to any Personal Data (as defined in the DPA) for and on behalf of the Customer, who re- mains the Data Controller (as defined in the DPA) in relation to such Personal Data, and without limitation to the foregoing, the Supplier will:
18.1 process Personal Data only in accordance with the written instructions of the Customer;
18.2 take all appropriate measures to ensure that the Personal Data is kept secure and is not subject to any unauthorised processing, loss, destruction or damage;
18.3 ensure that its personnel and contractors are made aware of its obligations under this Agreement with regard to the security and protection of the Personal Data;
18.4 provide the Customer, at its reasonable request, with evidence of compliance with the Supplier's obligations under this clause;
18.5 assist the Customer to comply with any valid requests for access to Personal Data received by the Customer;
18.6 notify the Customer if the Supplier receives any requests for access to Personal Data and comply with the Customer's instructions in this connection;
18.7 notify the Customer of any unauthorised or unlawful disclosure or use of Personal Data of which the Supplier becomes aware;
18.8 at the request and option of the Customer, promptly return or safely destroy all Personal Data in t!he Supplier's possession or control.
This Agreement may be terminated immediately by notice in writing:
19.1.1 by the Supplier if the Customer fails to pay any sums due under this Agreement by the due date notwithstanding any other provisions for late payment in this Agreement;
19.1.2 by either party if the other party is in material or continuing breach of any of its obliga- tions under this Agreement and fails to remedy the same (if capable of remedy) for a period of 30 days after written notice of the breach by the other party;
19.1.3 by the Customer giving 90 days' notice within 30 days of receipt of notification by the Customer of a change in the Support Charge pursuant to clause 13 of this Agreement;
19.1.4 by either party if the other party is involved in any legal proceedings concerning its solvency, or ceases trading, or commits an act of bankruptcy or is adjudicated bankrupt or enters into liquidation, whether compulsory or voluntary, other than for the purposes of an amalgamation or reconstruction, or makes an arrangement with its creditors or petitions for an administration order or has a receiver or manager appointed over all or any part of its assets or generally becomes unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986 or anything analogous to such event occurs in any applicable jurisdiction;
19.1.5 in accordance with clause 20.8 (force majeure) of this Agreement.
19.2 Any termination of this Agreement under this clause will be without prejudice to any other rights or remedies of either party under this Agreement or at law and will not affect any accrued rights or iabilities of either party at the date of termination.
20 General contract provisions
20.1 Entire agreement
This Agreement constitutes the entire agreement between the parties and supersedes any previous agreement between the parties relating to the subject matter of this Agreement. Each of the parties acknowledges that in entering into this Agreement, it does not rely on and will have no remedy in respect of any statement of fact or opinion not recorded in this Agreement (whether negligently or innocently made), except for any representation made fraudulently.
No variation of these terms and conditions will be valid unless confirmed in writing by authorised signatories of both parties on or after the date of this Agreement.
If any of the provisions of this Agreement is judged to be illegal or unenforceable, the continuation in full force and effect of the remainder of them will not be prejudiced unless the substantive purpose of this Agreement is thereby frustrated, in which case either party may terminate this Agreement forthwith on written notice.
No forbearance or delay by either party in enforcing its respective rights will prejudice or restrict the rights of that party, and no waiver of any such rights or of any breach of any contractual terms will be deemed to be a waiver of any other right or of any later breach.
20.5 Rights of third parties
A person who is not a party to this Agreement has no right to benefit under or to enforce any term of this Agreement. The parties to this Agreement do not require the consent of any third party to terminate, rescind or to agree any variation, waiver or settlement in relation to it.
The Customer will not assign, sub-contract or otherwise deal with this Agreement or any rights and obligations under this Agreement without the prior written consent of the Supplier and any such attempt shall be void.
Any notice given under this Agreement by either party to the other must be in writing and may be delivered personally or by first-class post, and in the case of post will be deemed to have been given 2 Business Days after the date of posting. Notices will be delivered or sent to the addresses of the parties on the first page of this Agreement or to any other address notified in writing by either party to the other for the purpose of receiving notices after the date of this Agreement.
20.8 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 circumstances beyond the reasonable control of that party. If such circumstances continue for a continuous period of more than 60 days, the non-affected party may terminate this Agreement by written notice to the other party.
20.9 Nature of relationship
This Agreement shall not constitute or imply any partnership, joint venture, agency, fiduciary or other relationship between the parties other than the contractual relationship expressly provided for in this Agreement.
This Agreement may be executed in any number of counterparts, each of which shall be an original, and such counterparts shall together constitute one and the same agreement.
20.11 Dispute resolution, governing law and jurisdiction
20.11.1 This Agreement is governed by and construed according to English law. The courts of England shall have exclusive jurisdiction to hear and determine any suit, action or proceeding, and to settle any dispute, which may arise out of or in connection with this Agreement. Notwithstanding the foregoing, both parties may seek any injunctive relief or provisory/conservatory measures from any other competent court in England. In addition, both parties shall have the right to sue for breach of its intellectual property rights or trade secrets (whether in connection with this Agree- ment or otherwise) in any country where it believes that infringement or a breach of this Agree- ment relating to its intellectual property rights might be taking place.
20.11.2 Each party recognises that the other party's business relies upon the protection of its intellectual property rights and that in the event of a breach or threatened breach of such intellectual property rights, the other party will be caused irreparable damage and may therefore be entitled to injunctive or other equitable relief in order to prevent a breach or threatened breach of its intellectual property rights.
20.11.3 With respect to all other disputes which are not intellectual property rights related arising out of or in connection with this Agreement, the following procedures in 20.11.3 to 20.11.6 below shall ap- ply. Where there is a dispute the aggrieved party shall notify the other party in writing of the nature of the dispute with as much detail as possible about the deficient performance of the other party. A representative from senior management of each of the parties ('representatives') shall meet in person or communicate by telephone within 5 Business Days of the date of the written notification in order to reach an agreement about the nature of the deficiency and the corrective action to be taken by the respective parties. The representatives shall produce a report about the nature of the dispute in detail to their respective boards and if no agreement is reached on corrective action, then the chief executives of each party shall meet in person or communicate by telephone, to fa- cilitate an agreement within 5 Business Days of a written notice by one to the other. If the dispute cannot be resolved at board level within a further 5 Business Days, or if the agreed upon comple- tion dates in any written plan of corrective action are exceeded, either party may seek its legal remedies as provided below.
20.11.4 If the parties cannot resolve the dispute by the procedure set out above, the parties shall irrevocably submit to the exclusive jurisdiction of the courts of England and Wales for the purposes of hearing and determining any dispute arising out of this Agreement. For the avoidance of doubt, the place of performance of this Agreement is agreed by the parties to be England.
20.11.5 While the dispute resolution procedure above is in progress and any party has an obligation to make a payment to another party or to allow a credit in respect of such payment, the sum relating to the matter in dispute shall be paid into an interest bearing deposit account to be held in the names of the relevant parties at a clearing bank and such payment shall be a good discharge of the parties' payment obligations under this Agreement. Following resolution of the dispute, wheth- er by mediation or legal proceedings, the sum held in such account shall be payable as determ- ined in accordance with the mediation or legal proceedings, and the interest accrued shall be al- located between the parties pro rata according to the split of the principal sum as between the parties.
nCover Service Levels and Terms
For each Laptop or Personal Computer
▪ Unlimited remote IT support by email or phone from 08:30 to 17:30
▪ AVG Professional Anti-virus and Anti-fraud software
▪ 10GB encrypted business-class back up
▪ Smart phone/tablet support
▪ On board process involves recording key admin details for your PC/Laptop
▪ Printer connectivity assistance
▪ Procurement advice
▪ Drop-off service to our Redhill office for failed equipment investigation
For each Laptop or Personal Computer
All the Silver features plus:
Office 365 (Licence for the latest MS Office)
Domain registration for your business
For each Laptop or Personal Computer
All the Gold features plus:
▪ Additional 10GB back up storage
▪ Quarterly IT audit and health check
▪ Website hosting and monitoring
▪ Technology advisor service
Designated Hardware and Software
To be completed and supplied to the Customer after the free Initial Audit by Supplier of the Customer's Hardware and Software suitability for support and to which this agreement applies.