1. TERMS AND CONDITIONS

1.1            These are the terms and conditions (“Conditions”) for EXTRAORDINARY MANAGED SERVICES LIMITED a company incorporated in Scotland (registered number SC214448) with principal place of business at 6 The Clocktower Estate, Flassches Yard, Edinburgh, EH12 9LB, United Kingdom and registered office at Suite 2, Ground Floor, Orchard Brae House, 30 Queensferry Road, Edinburgh EH4 2HS (“Supplier“).

1.2            These Conditions together with the Services Order and the documents referenced in the Services Order form the agreement (“Agreement”) between the Supplier and the Customer for the Services.

2.              Definitions

  • Unless expressly stated otherwise the following definitions shall apply to the terms used in the Agreement:

  • “Acceptable Use Policy” means the acceptable use policy as set out in the annex to these Conditions as may be updated by Supplier from time to time;

  • “Additional Fees” has the meaning given to that term in Clause 2;

  • “Agreement” means the Services Order incorporating these Conditions;

  • “Applicable Law” means (a) UK law, European Union law or any laws of a member state of the European Union in respect of which the parties are subject; and (b) any other applicable law in respect of which the parties and any Data Subject are subject;

  • “Authorised Representative” has the meaning given to that term in Clause 12;

  • “Business Hours” means 9am to 6pm UK time, Monday to Friday, excluding public holidays in England;

  • “Clause” means a clause of these Conditions;

  • “Client Content” means any Client data or materials stored or processed on the System or otherwise as part of the Services;

  • “Client Personal Data” means any Personal Data which may be Processed by the Supplier on behalf of the Client pursuant to or in connection with the Agreement;

  • “Client System” means the applicable elements of the Client’s hardware, equipment and software used in the provision of the Services, as further detailed in the relevant Services Schedule for each Service;

  • “Co-location” means a service involving only the provision of physical datacentre space, power and connectivity for the Client System;

  • “Commencement Date” means the date specified in the Services Order;

  • “Computer Virus” means any programmes or data incorporated into software or data that disrupts the proper operation of a computer hardware system or the associated software;

  • “Confidential Information” means all information passing from one Party to the other Party relating to the business of the disclosing Party, including but not limited to trade secrets, drawings, know-how, techniques, source and object code, business and marketing plans and projections, arrangements and agreements with third parties, customer information and customer information proprietary to customers, formulae, suppliers, concepts not reduced to material form, designs, plans and models but excludes information:

    • which is in or becomes part of the public domain other than through breach of the Agreement;

    • which the receiving Party can prove by contemporaneous written documentation was already known to it at the time of disclosure by the disclosing Party or its representatives; or

    • which the receiving Party acquires from a third party entitled to disclose it;

“Data Protection Laws” means (a) to the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of personal data including the DPA 2018; or (b) to the extent the EU GDPR applies, the law of the European Union or a member state of the European Union to which the Supplier or Client is subject, which relates to the protection of personal data;

  • “Downtime” means any period of time during which the Services are unavailable;

  • “DPA 2018” means the Data Protection Act 2018 (and regulations made thereunder);

  • “EEA” means the European Economic Area;

  • “EU GDPR” means the General Data Protection Regulation ((2016/679) as amended);

  • “Force Majeure” means anything outside the reasonable control of a Party, including but not limited to, acts of God, fire, storm, flood, earthquake, explosion, accident, acts of the public enemy, war, insurrection, sabotage, epidemic, quarantine restriction, labour dispute (whether involving its own workforce of a third party’s), labour shortage, power shortage, transportation embargo, failure or delay in transportation, default of suppliers, subcontractors or any third parties, where Supplier ceases to have access to the Internet for reasons not within its control or any act or omission (including laws, regulations, disapprovals or failures to approve) of any government or government agency;

  • “ICO” means the UK Information Commissioner’s Office;

  • “Initial Period” means the period specified in each Services Order;

  • “Intellectual Property” means all intellectual property rights relating to or owned by either Party anywhere in the world (including present and future intellectual property rights) including without limitation Confidential Information, business names, domain names, copyright, database rights, patents, trade or service marks, designs, software, software programmes and source code and all variations, modifications or enhancements to each of them together with any application or right to apply for registration of those rights;

  • “Materials” means all materials owned by a Party used in the provision or receipt of the Services, including software programmes and source code;

  • “Party” means a party to the Agreement;

“PCI DSS“ means the Payment Card Industry (PCI) Data Security Standard (DSS);

  • “Personnel” means any employees, agents or contractors of either Party;

  • “QSA“ means a qualified security assessor certified by the PCI Security Standards Council as being qualified to validate compliance with the PCI DSS;

  • “Open Source Software” means open-source software as defined by the Open Source Initiative (http://opensource.org) or the Free Software Foundation (http://www.fsf.org);

  • “Response Times” means the response times for support as set out in the Service Level Agreement(s);

  • “Service Level Agreement(s)” means the service level agreement(s) set out in the Services Schedule;

  • “Services” means those services provided to the Client as stated in the applicable Services Order;

  • “Services Schedule” means the electronic document made available via the Services Order which contains the Services descriptions, responsibilities, Service Level Agreement and further terms and conditions applicable to specific Services;

  • “Services Fees” has the meaning given to that term in Clause 12.1;

  • “Services Order” means the online portal page or electronic signature platform page from which the Customer accepts these Conditions and which links to the applicable Services Schedule;

“Supplier System” means the applicable elements of the Supplier’s hardware, equipment and software used in the provision of the Services, as further detailed in the relevant Services Schedule for each Service;

“System” means the hardware, equipment and software used in the provision of the Services and shall include both the Supplier’s System and the Client’s System; and

“UK GDPR” has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the DPA 2018.

3.              Interpretation

3.1            In the Agreement, unless the context otherwise requires:

3.1.1                 a reference to any document is a reference to that document as varied, novated or replaced from time to time;

3.1.2                 the singular includes the plural and vice versa;

3.1.3                 a reference to a gender includes all other genders;

3.1.4                 any use of the word ‘including’ will not be limited by the words that follow;

3.1.5                 a reference to a person or entity includes a natural person, a partnership, a corporation, trust, association, an unincorporated body, authority or other entity; and

3.1.6                 a reference to a person includes that person’s legal personal representative, successors and permitted assigns.

3.2            Headings have been inserted for convenience only and shall not affect the interpretation of the Agreement.

3.3            In the event of any conflict or inconsistency, the following order of preference shall apply (in descending order of priority), but only so far is necessary to resolve that conflict or inconsistency: (i) a Services Order (ii) the relevant Services Schedule; and (iii) the terms of the main body of these Conditions.

4.              Provision of Services

4.1            Supplier will provide Services to the Client in accordance with the terms of:

4.1.1                 the Services Order;

4.1.2                 the applicable Services Schedules relevant to the Services to be provided; and

4.1.3                 these Conditions;

4.2            The Client acknowledges that Supplier may from time to time provide services outside the scope of Clause 4.1 on a discretionary and ad hoc basis. Supplier’s liability for such services shall be limited in accordance with Clause 8.

4.3            The Client acknowledges that the Services Schedule may include conditions and obligation in addition to those set out in these Conditions, which conditions and obligations will form part of the Agreement.

5.              Basis of the Services

5.1            The Client shall in respect of its receipt of the Services and the performance of its obligations hereunder:

5.1.1                 comply with the Acceptable Use Policy;

5.1.2                 comply with all applicable laws and regulations; and

5.1.3                 provide Supplier with all necessary cooperation in relation to the Agreement including without limit investigation of security breaches, operational problems and suspected breaches of the Agreement.

5.2            The Client is responsible for the use of the Services by any of the Client’s Personnel, any person to who the Client has given access to the Services and any person who gains access to the Client Content or the Services as a result of the Client’s failure to use reasonable security precautions, even if such use was not authorised by the Client.

5.3            Other than as expressly set out herein, to the fullest extent permitted by law the Client accepts the Services and any equipment made available to the Client by Supplier “as is” with any faults, or failings and without any representation, warranty or guarantee whatsoever, express or implied, including without limitation any implied warranty of accuracy, completeness, quality, continuity of service, connectivity and fitness for a particular purpose.

5.4            The Client acknowledges that the Services are not designed for or to be used to operate mass transport, energy or utility facilities, healthcare, or other mission critical application where human life or property may be at stake. The Client acknowledges that the Services are not designed for such purposes and that its failure in such cases could lead to death, personal injury, or severe property or environmental damage for which Supplier, to the extent permitted by law, is not responsible.

5.5            Supplier does not warrant or undertake that the Services are PCI DSS compliant. Notwithstanding any assistance given to the Client by Supplier, the Client must satisfy itself that the Services are compliant with PCI DSS and engage the services of a QSA at its own expense if they require the Services to be PCI DSS compliant.

5.6            Subject to Supplier’s approval, the Client is entitled to use monitoring tools and plug-ins provided that they do not interfere with the provision or availability of the Services or the System. Supplier shall not provide any support to these and reserves the right to disable them if they disrupt the Services or System.

5.7            The Client acknowledges that the Supplier is not providing the Client with any data back-up or disaster recovery services except where data back-up or disaster recovery services are expressly stated to be provided in the Services Order. The Client acknowledges that there are risks inherent in Services provided over the internet that could result in the loss of Client Content, and the Client shall:

5.7.1                 take and maintain its own regular data back-ups, no less frequently than daily, in respect of all data stored on the System or back-up facilities;  and

5.7.2                 maintain adequate insurance cover in respect of any loss or damage to data stored on System or back-up facilities.

5.8            The Client must provide, at its own cost, all telecommunications services, computers and other equipment or services necessary to enable it to have access to Services.

5.9            The Supplier shall be entitled to amend the Agreement where this is required for reasons of regulatory compliance.  Supplier will endeavor to provide the Client with 30 days’ written notice of any such variation other than in exceptional or emergency circumstances.  The Supplier shall also be entitled to amend the Agreement in relation to the scope, pricing and/or delivery of the Services where this is being applied across the Supplier’s business for bona fide and defensible commercial reasons. The Supplier shall provide the Client with [30] days notice of any such variation. Where the Client raises a material and defensible objection to any such variation which the Supplier is not able to resolve to the Client’s reasonable satisfaction, the Client shall be entitled to terminate the Agreement on written notice.

5.10         The Client must take reasonable measures to ensure it does not jeopardise the System or services supplied to other clients.

5.11         The Client acknowledges that the Services may include Open Source Software and any Open Source Software provided by Supplier may be used according to the terms and conditions of the specific licence under which the relevant Open Source Software is distributed but is provided “as is” and is expressly subject to the disclaimer in Clause 5.3.

5.12         The Client will provide to Supplier a list of the names of anyone who it has authorised to contact the Supplier in connection with the Services and the function they are to perform (“Authorised Representatives“). The Client must ensure that the Authorised Representatives are competent and qualified to provide instructions and to deal with the provision of the Services. The Client must procure that only Authorised Representatives are permitted to contact the Supplier. The Supplier shall not be liable for any instructions received from any person who is not an Authorised Representative. Where Supplier considers it has received contradictory or inconsistent instructions from Authorised Representatives, Supplier (acting reasonably) may act upon such instructions as it deems fit at its sole discretion or refuse to act (with or without suspending the Services) until such instructions are clarified.

5.13         Supplier shall use reasonable endeavours to meet any performance dates set out in the Services Order, but any such dates shall be estimates only.

5.14         The Client may use the Services to provide services to its customers for the Client’s business use. The Client will be responsible for the provision of services to its customers and will indemnify Supplier in respect of any losses, costs, liabilities or expenses (including the cost of any settlement) incurred by the Supplier in the event of a Client’s customer or any other third party who has access to or use of the Services via the Client bringing a claim against Supplier.

5.15         For the avoidance of doubt, unless otherwise expressly stated in the Services Order, Supplier shall not be liable for and the Services will not include:

5.15.1              Physical maintenance and insurance of any Supplier System located with Supplier on a Co-location basis.   

5.15.2              monitoring of Services;

5.15.3              operating system management;

5.15.4              operating system ongoing patching;

5.15.5              database management;

5.15.6              database system ongoing patching;

5.15.7              systems configuration other than operating system installation;

5.15.8              firewalling services;

5.15.9              anti-virus services;

5.15.10            vulnerability scanning;

5.15.11            intrusion detection services;

5.15.12            log collection and log analysis services; or

5.15.13            denial of service attack mitigation.

6.              Domain name registration

6.1            If domain name registration services are requested, Supplier makes no warranties or representation of any kind that a requested domain name is available for registration or use.

6.2            The registration and use of domain names is subject to the terms and conditions of the relevant naming authority.

6.3            If payments are not received in respect of domain name registrations, Supplier may cancel or retain them.

6.4            The Client is responsible for ensuring that it has the right to use domain names that are registered by Supplier and the Client hereby indemnifies Supplier for any loss incurred by Supplier in that regard.

6.5            In the event of a dispute between the Client and third parties in respect of the rights to domain names, Supplier retains the right to suspend or cancel disputed domain names.

7.              Availability

7.1            The Client acknowledges that Services and System may from time to time be inoperative or only partly operational as a consequence of mechanical breakdown, maintenance, hardware or software upgrades, telecommunication connectivity problems or other causes.

7.2            Supplier does not warrant that the Services or server will be continuously available 24 hours a day 365 days a year but will use its reasonable endeavours to keep Downtime to a minimum.

7.3            When the Services are disrupted due to circumstances that are within Supplier’s control then Supplier  will use its reasonable commercial endeavours to rectify the problem as soon as is reasonably possible.

8.              Limitation of Liability

8.1            Supplier gives no condition, warranty or undertaking and makes no representation to the Client about the suitability of, or fitness of Services for the Client’s purposes other than those conditions, warranties, undertakings or representations expressly set out in the Agreement.

8.2            With the exception of any rights which the Client may have under applicable law, all warranties, conditions and other terms implied by statute or common law are excluded from the Agreement to the fullest extent permitted by law.

8.3            Nothing in the Agreement excludes or limits the liability of Supplier for

8.3.1                 death or personal injury caused by Supplier’s negligence;

8.3.2                 breach of section 12 of the Sale of Goods Act 1979 or section 11B of the Supply of Goods and Services Act 1982;

8.3.3                 fraudulent misrepresentation; or

8.3.4                 any loss or damage which cannot be excluded or limited by law.

8.4            Subject to Clauses 8.2 and 8.3:

8.4.1                 Supplier’s total liability in contract, tort or otherwise, arising in connection with the performance or contemplated performance of the Agreement shall be limited in any calendar year to the total value of Services Fees paid to Supplier by the Client in terms of the Agreement during that calendar year in respect of the Services to which the liability relates;

8.4.2                 Supplier shall not be liable to the Client or any third party for any indirect, special or consequential loss or damage, costs, expenses or other claims for consequential compensation whatsoever or howsoever caused which arise out of or in connection with the Agreement, or for loss of profit, loss of business, loss of data, depletion of goodwill or loss occurring in the normal course of business or otherwise;

8.4.3                 Supplier shall not be liable for defects resulting from improper use of Services by the Client or by another third party;

8.4.4                 Where Supplier is solely responsible for the loss or damage to any data stored on the System or back-up facilities, Supplier’s liability shall be limited to restoring any lost or damaged data to the last available back-up. In all other circumstances, Supplier shall not be liable for any loss or damage to any data stored on System or back-up facilities except to the extent expressly provided for in any applicable Services Order; and

8.4.5                 Supplier shall not be liable for unauthorized access to Client Content or unauthorized use of the Services unless the unauthorized access or use results from Supplier’s failure to meet its own security obligations.

8.4.6                 Supplier shall not be liable for any loss or damage arising from any services provided pursuant to Clause 4.2.

9.              Client Content

9.1            The Client shall be solely responsible for the accuracy, legality, currency and compliance of the Client Content and will be solely liable for false, misleading, inaccurate, or infringing information contained or referred to therein.

9.2            If Supplier reasonably forms the view that the Client Content may be pornographic, illegal, defamatory, misleading or deceptive or otherwise in breach of any third party’s rights, Supplier may remove that Client Content from the System and shall within twenty four (24) hours thereafter notify the Client of its removal. In addition, the Client shall fully and effectively indemnify Supplier in respect of all losses of whatsoever nature incurred by Supplier as a result of the Client Content being pornographic, illegal, defamatory, misleading, deceptive or otherwise in breach of any third party’s rights.

10.           Data Protection

10.1         The terms “Controller“, “Data Subject“, “member state“, “Personal Data“, “Personal Data Breach“, “Processing“, and “Supervisory Authority” shall have the same meaning as in the Data Protection Laws.

10.2         Processing of Client Personal Data

10.2.1   Client is the Controller and will comply with all obligations applicable to a Controller pursuant to the Data Protection Laws and any other Applicable Law. Supplier shall only process Client Personal Data on the documented instructions of the Client, unless otherwise required by an Applicable Law to which Supplier is subject, in which case Supplier shall inform Client of that legal requirement before such Processing, unless that law prohibits such information on important grounds of public interest.

10.2.2   For the purpose of Clause 10.2.1, the Client instructs Supplier (and authorises Supplier to instruct each Subprocessor) to Process Client Personal Data as is necessary to provide the Services. Client warrants and represents that it is and will at all relevant times remain duly authorised to give this instruction.

10.2.3   “GDPR Description of Processing of Personal Data” in the Services Order sets out certain information as required by Article 28(3) of the Data Protection Laws, and the Client warrants it is an accurate reflection of the Processing activities pursuant to the Agreement.

10.3         Personnel

Supplier will ensure that all employees or contractors of the Supplier who have access to Client Personal Data are subject to confidentiality undertakings or professional or statutory obligations of confidentiality.

10.4         Security

10.4.1   During the Term, Supplier will implement the technical and organisational security measures set out in the Services Order, which measures may be updated by Supplier from time to time provided that such updates shall not materially decrease the protection of Personal Data for Data Subjects. The Client will  implement its own additional measures where appropriate, for example applying encryption before the data is transferred to the Supplier, when data is created or while the data is being stored by the Supplier (“Client Security Measures“), provided always that the Supplier shall not be required to change any of its measures.

10.4.2   The Client warrants that on the date of the Agreement, all Client Personal Data provided to the Supplier has been collected and Processed by the Client in accordance with all Applicable Laws and the Client has ensured that there is and there will continue to be a lawful basis for the Supplier to Process such Personal Data.

10.5         Subprocessing

10.5.1   Client authorises Supplier to appoint (and permit each Subprocessor to appoint) Subprocessors in accordance with the Agreement.

10.5.2   Client specifically authorises the Subprocessors stated in the Services Schedule to Process Client Personal Data as required to provide the Services in relation to data storage, subject to Supplier in each case, as soon as practicable, meeting the obligations set out in Clause  10.5.4 (in each case, an “Authorised Sub-Processor“).

10.5.3   Supplier shall ensure the Client receives a notification as soon as reasonably practicable of any intended changes concerning the addition or replacement of any of the Authorised Sub-Processors, that will Process any Client Personal Data (“New Sub-Processor“). If, within 14 calendar days of receipt of that notice, Client notifies Supplier in writing of any objections (on reasonable grounds) to the proposed appointment of a New Sub-Processor, the parties will endeavour to agree (acting reasonably) the commercially reasonable steps to be taken to ensure that the New Subprocessor in question is compliant with Article 28(4) of the Data Protection Laws. Where the Client considers, acting reasonably, that the risks involved with the subprocessing are still unacceptable in the context of Article 28(4), within 30 calendar days following the proposal in relation to the appropriate steps, the parties shall promptly seek to resolve the issues.

10.5.4   With respect to each Authorised Subprocessor, Supplier shall: (i) ensure that the arrangement between Supplier and the Authorised Subprocessor is governed by terms and conditions or a service agreement which offers no less protection for Client Personal Data as those terms set out in the Agreement and (ii) if that arrangement involves the transfer of Personal Data to a country outside of the EEA that has not been determined to ensure an adequate level of protection for Personal Data, at Supplier’s discretion: Supplier will either (a) ensure that an appropriate data transfer safeguard is in place in compliance with Chapter V of the Data Protection Laws, or (b) where required to ensure compliance with Data Protection Laws, use commercially reasonable endeavours to procure that the Subprocessor enters into standard contractual clauses approved by the ICO or European Commission (as appropriate) directly with the relevant Client.

10.6         Data Subject Rights

10.6.1   Client shall, in the first instance, comply with requests received from any Data Subjects to exercise their rights pursuant to Chapter III of the UK GDPR by itself accessing the Client Personal Data held on the System.

10.6.2   Subject to section 10.6.1 and taking into account the nature of the Processing, Supplier shall assist Client, at the Client’s cost, to comply with requests to exercise Data Subject rights under the Data Protection Laws by notifying the Client without undue delay if the Supplier receives a formal request directly from a Data Subject to exercise any of its rights under Chapter III of the Data Protection Laws in respect of Client Personal Data. Where any further assistance is required, taking into account the nature the nature of Processing by the Supplier, the Parties shall enter into a Services Order.

10.7         Personal Data Breach

10.7.1   Supplier shall notify the Client without undue delay upon Supplier becoming aware of a Personal Data Breach affecting Client Personal Data, providing Client with information (as and when available) to assist the Client to meet any obligations to report or inform Data Subjects of the Personal Data Breach under the Data Protection Laws.

10.7.2   Supplier shall, at the Client’s cost, co-operate with the Client and take such reasonable commercial steps as are reasonably instructed by the Client to assist in the investigation of each such Personal Data Breach.

10.8         Data Protection Impact Assessment and Prior Consultation

Where the Services involve high risk Processing of Personal Data, Supplier shall, at the Client’s cost, provide reasonable assistance to Client with any data protection impact assessments, and prior consultations with the ICO or other relevant Supervisory Authorities, which are required by Article 35 or 36 of the Data Protection Laws, in each case solely in relation to Processing of Client Personal Data by, and taking into account the nature of the Processing and information available to, the Supplier. 

10.9         Deletion or Return of Client Personal Data

Subject to the requirements of any applicable exit plan in the Agreement, Supplier shall either return or delete and procure the deletion of all Client Personal Data held by Supplier upon termination of the Agreement and following cessation of any Services involving the Processing of Client Personal Data. The Supplier may retain Client Personal Data to the extent required by Applicable Laws (and for clarity, it is acknowledged that Supplier may retain troubleshoot/service desk ticket information in an anonymised and aggregate manner).

10.10       Audit Rights

10.10.1Supplier shall make available to Client on reasonable request a copy of the Supplier’s  ISO 27001 certification and any independent security audit reports; which the Client shall use to satisfy itself that the System meets   compliance with Article 28(3) of the Data Protection Laws.  

10.10.2Where applicable, if the Client (acting reasonably) is not otherwise satisfied by its rights pursuant to 10.10.1 or where a regulator requires the Client to inspect the Supplier, Supplier shall, at the Client’s costs, allow for audits by an auditor mandated by Client (subject to section 10.10.3 and to such auditor being subject to written confidentiality obligations in relation to such information), provided that: (i) Client shall give Supplier reasonable notice of any audit or inspection to be conducted; (ii) Client shall take reasonable steps to ensure (and shall procure that each of its mandated auditors) it minimises the disruption to the Supplier’ business in the course of such an audit  and such audit shall be conducted during normal working hours; and (iii) the Supplier need not contribute or allow for an audit more than once in any calendar year, except for any audit mandated by a regulator.

10.10.3Supplier may object in writing to an auditor mandated by the Client if the auditor is, in Supplier’s reasonable opinion, not suitably qualified or independent, a competitor of Supplier, or otherwise unsuitable. In the event of such an objection, the Client shall appoint another auditor or conduct the audit itself.

11.           DURATION

11.1         The Agreement will commence on the Commencement Date and will subsist for the Initial Period, unless earlier terminated in accordance with its terms.

11.2         Following the Initial Period, the Agreement shall automatically continue in force, unless terminated in accordance with its terms or by either Party giving the other such period of written notice as specified in the Services Order.

12.           Charges and Payment

12.1         The Client will pay Supplier the fees and charges specified in the Services Order,  together with any VAT (where applicable) and any other applicable taxes at the then prevailing rate (“Services Fees”).

12.2         The Client may also purchase additional services from Supplier at the then current rate as set out within the Services Order (“Additional Fees“).

12.3         The Client will pay the Services Fees within the period set out in the Services Order, or if no period is set out within 14 days after the date of Supplier’s invoice. If there is a dispute with respect to any portion of an invoice, the Client shall pay the undisputed portion of the Services Fees promptly and any dispute shall be resolved in accordance with Clause 22.

12.4         Supplier will be entitled to increase the Services Fees once in every twelve (12) month period commensurate with any change to the UK Retail Price Index.

12.5         Services Fees paid in advance are non-refundable and no credit notes will be given.

12.6         Any Additional Fees and out of pocket expenses and charges will be agreed on in writing in advance between the parties and invoiced separately. The Client shall reimburse Supplier for any such Additional Fees and out of pocket expenses reasonably incurred by Supplier.

12.7         If the Client is in arrears in any payment due to Supplier under the Agreement, the Client will pay, in addition to the arrears, interest at the rate of four per centum (4%) per annum above the base rate for the time being of The Royal Bank of Scotland plc on all arrears calculated on a daily basis from the date the default occurs until payment is made in full as well before as after judgement.

12.8         Without limiting any other right or remedy available to Supplier, Supplier may on giving seven (7) days’ notice, and without having to account for or to repay any money previously paid to it pursuant to the terms of the Agreement, refuse to commence, complete or deliver any work or otherwise comply with the provisions of the Agreement on Supplier’s part to be observed or performed in the event the Client:

12.8.1              fails to pay any sums due to Supplier under the Agreement; or

12.8.2              otherwise defaults in the due observance and performance of the Agreement.

12.9         The Client be responsible for providing Supplier with complete, up to date and accurate billing and contact information.

13.           Ownership & Software Licensing

13.1         The Parties acknowledge that the Agreement does not have the effect of transferring the ownership of any Intellectual Property.

13.2         Any Intellectual Property owned by either Party and required for the performance by the other Party of its obligations under the Agreement shall be licensed to that other Party on a non-exclusive, royalty-free, non-transferable basis for the sole purpose of fulfilling that Party’s obligations under the Agreement and for the period during which the use of that Intellectual Property by that Party pursuant to the Agreement is required.

13.3         Where indicated, third party software provided by Supplier as part of the Services will be subject to the third party’s terms and conditions. Where a third party support and maintenance agreement is in place for software, Client will liaise with such third party directly regarding any incidents and Supplier will have no liability in respect of support and maintenance of such software. Otherwise, where resolution of any Downtime or other incident is dependent on a fix being obtained from a third party software supplier, Supplier will use reasonable endeavours to work with such third party software supplier and to provide a workaround where reasonable practicable, but will not be liable hereunder for any impact on the Services.

13.4         Where the Client places or installs their own Material (including Client Content) on the System, the Client is responsible for ensuring that they have secured all necessary licences required for the performance by Supplier of its obligations under the Agreement and for the period during which the use of those rights by Supplier pursuant to the Agreement is required.

13.5         The Client shall fully indemnify Supplier against all losses, costs, claims, demands, expenses and liabilities of any nature arising from or relating to any action or claim that the Client Content or Materials infringe any Intellectual Property Rights of any third party.

13.6         Client hereby grants Supplier a non-exclusive, royalty free, perpetual and irrevocable right to use Client’s names, logos, domain names and trademarks on Supplier’s web site and in Supplier’s sales material.

14.           Sub-Contracting, AssignMENT and Novation

14.1         Subject to its obligations under Data Protection Laws, Supplier may assign or novate any of its rights and obligations under the Agreement.

14.2         The Client acknowledges that Supplier may use services, equipment or software of third parties in the delivery of the Services.

14.3         The Client may not assign or novate any of its rights or obligations under the Agreement without the prior written consent of Supplier.

14.4         The Client may sub contract any of its obligations under this agreement to competent and appropriately qualified third parties. The Client will be responsible for any acts, or failures to act, of its subcontractors as if they were the Client’s acts or failures to act. The Client will procure that none of its sub contractors will bring any claims under or in relation to the Agreement against Supplier, and the Client will indemnify Supplier in respect of any losses, costs, liabilities or expenses (including the cost of any settlement) incurred by the Supplier in the event of a sub contractor bringing a claim against Supplier.

15.           Warranties

15.1         Each Party warrants that:

15.1.1              it has authority to enter and to perform its obligations under the Agreement; and

15.1.2              it has the ability to perform its obligations under the Agreement.

15.2         The Client warrants that:

15.2.1              the use by Supplier of any Client Content or Materials submitted by the Client to Supplier under the Agreement will not infringe the rights of any person or contravene any law;

15.2.2              at the time of entering into the Agreement it is not relying on any representation made by Supplier which has not been expressly set out in the Agreement;

15.2.3              it will take all reasonable steps to ensure that any software used in connection with Services and any material or data provided to Supplier will be free from any Computer Virus and will not damage or corrupt any other data or system; and

15.2.4              that it is solely responsible for communicating with persons who maintain or access any of its websites and that it will not divert any complaints or concerns from such persons to Supplier.

16.           Indemnity

16.1         The Client indemnifies and undertakes to keep indemnified Supplier against any losses, costs, liabilities or expenses (including the cost of any settlement) arising out of any claim, action, proceeding or demand that may be brought, made or prosecuted against Supplier by any person arising out of or as a consequence of an unlawful or negligent act or omission of Client in any way connected with the Agreement whether arising from any failure by the Client to comply with the terms of the Agreement or otherwise.

16.2         The indemnity extends to and includes all costs, damages and expenses reasonably incurred by Supplier in defending any such action, proceeding, claim or demands.

17.           Suspension

17.1         Supplier may suspend the Services without liability if:

17.1.1              Supplier reasonably believes that the Services are being used in breach of the Agreement, including a breach of the Acceptable Use Policy;

17.1.2              the Client fails to cooperate with Supplier in accordance with Clause 5.1.3;

17.1.3              there is a Force Majeure event;

17.1.4              Supplier reasonably believes that the continued provision of the Services would be in breach of legislative or regulatory requirements;

17.1.5              the Client has been subject to repeated or significant denial-of-service attacks;

17.1.6              Supplier reasonably believes that the suspension is necessary to protect the System or other clients; or

17.1.7              Supplier receives inconsistent or contradictory instructions from Authorised Representatives.

17.2         Supplier shall notify the Client within twenty four (24) hour of such suspension, or as soon as reasonably practical.

18.           Termination

18.1         Supplier may terminate the Agreement in whole or in part by notice in writing to the Client in the event that:

18.1.1              the Client fails to pay any amount to Supplier due under the Agreement and does not make that payment within fourteen (14) days after receiving notice requiring the Client to do so;

18.1.2              any payment has been outstanding for more than twenty one (21) days;

18.1.3              the Client fails to perform any of the obligations on its part to be observed or performed pursuant to the Agreement;

18.1.4              the Services have been suspended in accordance with Clause 17 for a period of more than fourteen (14) days; or

18.1.5              any of the warranties or representations made by the Client contained in the Agreement are false or inaccurate in any material way.

18.2         Either Party shall be entitled to terminate the Agreement or any Services Order forthwith by notice in writing to the other if the other Party shall:

18.2.1              commit any material breach of any of its obligations under the Agreement or Services Order which is incapable of remedy or, if capable of remedy, has not been remedied within thirty (30) days of receipt of a written notice from the other Party;

18.2.2              pass a resolution for winding-up (otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction) or a court of competent jurisdiction shall make an order to that effect;

18.2.3              make any voluntary arrangement with its creditors or become subject to an administration order;

18.2.4              have a receiver or administrative receiver appointed; or

18.2.5              cease or threaten to cease to carry on business.

18.3         Notwithstanding that Supplier terminates the Agreement or Services Order, this shall be without prejudice to the accrued rights and remedies of the parties prior to termination of the Agreement or Services Order and any rights or remedies under the Agreement shall remain in force.

19.           Confidential Information

19.1         Each Party may use the Confidential Information of a disclosing Party only for the purposes of the Agreement and must keep confidential all Confidential Information of each disclosing Party except to the extent (if any) the recipient of any Confidential Information is required by law to disclose the Confidential Information.

19.2         Either Party may disclose Confidential Information of the other Party to those of its Personnel who have a need to know the Confidential Information for the purposes of the Agreement but only if the Personnel executes a confidentiality undertaking in a form approved by the other Party.

19.3         All documents and other materials containing Confidential Information of either Party will be returned to that Party immediately upon completion of Services

19.4         The parties’ obligations to keep information confidential will survive the termination of the Agreement.

19.5         The obligations of confidentiality under the Agreement do not extend to information that:

19.5.1              was rightfully in the possession of the receiving Party before any negotiations leading to the Agreement;

19.5.2              is, or after the day the Agreement is signed, becomes public knowledge (otherwise than as a result of a breach of the Agreement); or

19.5.3              is required by law to be disclosed.

20.           Force Majeure

20.1         If a Party is wholly or partially precluded from complying with its obligations under the Agreement by Force Majeure, then that Party’s obligation to perform in accordance with the Agreement will be suspended for the duration of the Force Majeure.

20.2         As soon as practicable after an event of Force Majeure arises, the Party affected by Force Majeure must notify the other Party of the extent to which the notifying Party is unable to perform its obligations under the Agreement.

21.           Notification

21.1         Any notices given by Supplier to the Client may be given by e-mail, facsimile,  letter or validated submission via the Supplier’s electronic portal ticketing system.

21.2         The Client shall be responsible for ensuring that Supplier has been provided with up to date information to allow Supplier to serve notices in terms of Clause 21.1.

22.           Dispute Resolution

22.1         The parties will take all reasonable steps to negotiate in good faith and settle any dispute that may arise out of or relate to these Conditions, or any breach thereof. Prior to the commencement of any formal dispute resolution procedure any dispute shall be referred to the Managing Directors of both parties for discussion and resolution within fourteen (14) working days

22.2         If the dispute or difference is not resolved as a result of such meetings then either Party may refer the dispute to the Expert (as defined in Clause 22.3 below) for determination provided always that no dispute as to the ownership of intellectual property rights may be referred to the Expert and neither Party shall be prevented from seeking injunctive relief in order to protect its intellectual property rights.

22.3         For the purpose of this clause 22 the Expert shall be such person as the parties may by mutual agreement appoint in such capacity or failing such agreement, such person as may be appointed (on the application of either of the parties) by the senior office bearer for the time being of the British Computer Society.

22.4         The decision of the Expert shall in all cases (in the absence of manifest or clerical error) be final and binding on the parties. The Expert shall act as expert and not as arbitrator.

22.5         The costs of the application to the Expert shall be borne by the parties as determined by the Expert.

22.6         Nothing in this Clause 22 shall restrict or prevent either Party from:

22.6.1              applying to the courts for an interim or injunctive or protective remedy pending resolution of any dispute; or

22.6.2              bringing proceedings to recover a debt in any country where the defender has assets.

23.           Export

  • The Client warrants and undertakes not to possess, use, import, export or resell (and shall not permit the possession, use, importation, exportation or resale of) the Services or any information provided by Supplier to the Client under the Agreement which would cause Supplier to breach any applicable export control laws, rules, or regulations of any jurisdiction (including without limitation those under UK law). Without limitation, the Client warrants and undertakes that it will not use the Services for the development, design, manufacture, production, stockpiling, or use of nuclear, chemical or biological weapons, weapons of mass destruction, or missiles; illegal gambling, terrorism, narcotics, trafficking, or arms trafficking; nor will you provide administrative access to or permit use of the Services by any persons (including any natural person, government or private entity or other form of body corporate) that is located in or is a national of any country that is embargoed or highly restricted under United Kingdom export laws, rules or regulations.

24.           Third Party Rights

  • Unless the right of enforcement is expressly granted, a person who is not party to the Agreement shall have no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Agreement.

25.           Severability and Waiver of Remedies

25.1         If any Clause (or part of a Clause) of the Agreement should be found not to be valid, lawful or enforceable by a court having proper authority or if the law changes so that it becomes invalid, unlawful or unenforceable to any extent the Clause (or part affected) will be treated as having been deleted from the remaining terms of the Agreement which will continue to be valid.  In addition, the parties will use reasonable efforts to replace the deleted Clause (or part) with a valid replacement provision which is as close as possible to the one that has been deleted.

25.2         If either Party delays or fails to exercise its rights under the Agreement it does not prevent that Party from exercising those rights at any time afterwards.  In addition, if a Party waives its right on one occasion this does not mean that the Party has lost (or waived) these rights on a later occasion.

25.3         Supplier’s express rights and remedies under the Agreement are in addition to and are not exclusive of any other right or remedy available to Supplier at law.

26.           Variation

  • A variation of the Agreement shall be in writing and signed by or on behalf of both parties to the Agreement.

27.           No Joint Venture or Partnership

  • The Agreement does not create a partnership or joint venture between the parties to it and except as expressly provided in the Agreement neither Party will enter into or have authority to enter into any engagement or make any representations or warranties on the other Party’s behalf, nor will they seek to otherwise bind or oblige the other Party in any way.

28.           Entire Agreement

  • The Agreement constitutes the entire agreement between the parties with respect to the subject matter of the Agreement. The Agreement supersedes and extinguishes all previous drafts, agreements, arrangements and understandings between them, whether oral or written. The Client acknowledges that is has not relied on any statement, promise or representation made or given by or on behalf of Supplier which is not set out in the Agreement. Nothing in this Clause 28 operates to exclude any liability for fraud.

29.           Jurisdiction and Governing Law

  • The parties agree that the Agreement shall be subject to the Law of England and to the exclusive jurisdiction of the English Courts.

Annex

Acceptable Use Policy (AUP)

The following activities and material are not permitted on the System:

  • Sending unsolicited commercial email.

  • Running Internet Relay Chat (IRC) servers.

  • Pornography and other sexually explicit material.

  • Promoting prostitution or similar services.

  • Using Services in any manner that is illegal, fraudulent, abusive, malicious, deceptive or libellous.

  • Storing or distributing material (including software) that infringes the owner’s copyright, trademark or patent.

  • Advertisement of web links leading to material that infringes the owner’s copyright, trademark or patent.

  • Acting as a directory service to external services that aid in infringing an owner’s copyright, trademark or patent.

  • Use of unlicensed software the infringes the software author’s rights.

  • Hosting sites promoted by means of unsolicited email or newsgroup spamming.

  • Promoting services or software that assist in the distribution of unsolicited commercial email.

    • Unauthorised probing, scanning or testing the vulnerability of other systems.

  • Unauthorised monitoring of data or traffic on any system.

  • Use of unauthorised IP addresses.

  • Interference with internet services, including attacks by mass mailing and flooding.

  • Transmission of any material that threatens or encourages harm or destruction of property or people.

  • Transmission of any material that harasses another person.

  • Posting of defamatory, scandalous, or private information about a person without their consent.

  • Making fraudulent offers to sell or buy products, items or services.

  • Activities amounting to forgery or impersonation.

  • Anonymous proxy services.

  • Collecting or using information without the consent of the owner of the information including without limitation phishing, internet scamming, password robbery, spidering and harvesting.

  • Unauthorised use of an internet account or computer.

  • Any content or links to content which creates a risk to a person’s safety or health, creates a risk to public safety or health, compromises national security or interferes with an investigation by law enforcement.

  • Any activity which gives rise to disruption of Supplier’s network or business activities, or has potential to do so or to bring Supplier’s reputation into disrepute.