When used in these services general terms and conditions (“Services General Terms and Conditions”), the following capitalized terms (or in the case of the defined terms “services” and “Services”, with or without initial capitalization as noted) have the following meanings:
1.1 “Agreement” means the agreement constituted by the Purchase Order made between the Client and Supplier, together with the Service Level Agreement and/or the Install Service Scope of Works incorporated by reference therein as an integral part thereof including without limitation these Services General Terms and Conditions.
1.2 “Affiliate” means a subsidiary organisation, sister organisation or an organisationally connected entity to either party.
1.3 “Change control procedures” means the agreed process to be followed when changes are required either to the Agreement or to the Services.
1.4 “Client” referred to in the Agreement and Services General Terms and Conditions as the party who has provided the Purchase order to Supplier.
1.5 “Confidential Information” has the meaning set out for that term in section 6 of these Services General Terms and Conditions.
1.6 “Disclosing party” means the party who has disclosed confidential information to the other party.
1.7 “Effective Date” in relation to the Agreement, means the date the first Purchase Order is accepted by Supplier and such date shall be applicable in relation to any Supplementary Purchase Orders, even though such Supplementary Purchase Order may be accepted by Supplier at a later date, unless otherwise agreed by the parties in writing.
1.8 “Incident escalation” means the agreed procedure for alerting and notifying increasingly senior members of Suppliers management of the non-resolution of incidents.
1.9 “Incident management” means the agreed procedures for providing support and incident resolution services to the Client.
1.10 “Intellectual Property” means all intellectual and industrial property created, developed or reduced to practice by a party including, without limitation, software, compilations of data and computer databases, algorithms, business and technical rules, specifications, methodologies, templates, techniques, designs and industrial designs, know-how, confidential information, work of authorship, mask works and integrated circuit topographies, inventions and improvements.
1.11 “Intellectual property rights” includes all world-wide intellectual and industrial property rights including all rights in each country to copyrights, copyright registration applications, copyright registrations, trademarks, trademark registration applications, trademark registrations, patents, inventions, discoveries, patent applications, industrial designs, design rights, trade secrets and information of a confidential nature.
1.12 “Key personnel” means those persons employed by Supplier who have a key role in the delivery of the services to the Client.
1.13 “Non-standard services” means those services that are deemed outside of the Agreement.
1.14 “Parties” includes both Supplier and the Client of which the agreement is made between.
1.15 “Place of service delivery” means the address or addresses of the Client premises where the Service delivery is deemed to take place.
1.16 “Professional fees” means the remuneration or compensation due to Supplier for the provision of the Services.
1.17 “Purchase Order” means the purchase order between the Client and Supplier of which these Services General Terms and Conditions form an integral part.
1.18 “Quotation” means the cost for providing services by Supplier to Client.
1.19 “Receiving party” means the party who has received confidential information from the other party.
1.20 “Services” means allservices provided by Supplier to the Client pursuant to the Agreement.
1.21 “Service availability” means the times and periods that Supplier will make the Services available to the Client”
1.22 “Service component” means a divisible and identifiable part of the overall Services to be delivered.
1.23 “Service review meetings” mean regular meetings that are held between representatives of Supplier and the Client specifically to discuss areas arising from the delivery of the Services including the performance of the Service delivery.
1.24 “Specified services” mean those Services that are specified in the Agreement.
1.25 “Standard services” mean those Services that Supplier delivers to its Client without significant customisation.
1.26 “Service desk services” mean the specified support services provided by Supplier to the Client to assist the Client’s personnel to understand operate and execute the delivered Services.
1.27 “Supplier” referred to in the Agreement and Services General Terms and Conditions as Apex Network Solutions.
1.28 “Supplementary Purchase Order” means additional purchase orders that may be place by the Client from time to time.
2.1 Professional Fees The professional fees payable for performing either the Standard Services or the Optional Services are to be in accordance with the quotation accompanying the agreement.
2.2 Invoices The Supplier will submit invoices to the Client for professional fees. Each invoice will clearly state the fees for the services provided.
2.3 Payment Terms All fees are to be paid to the Supplier, in the currency of the invoice, via BACS transfer or Cheque. All invoices are payable within 30 days from the date of the invoice. Any amounts disputed in good faith may be deducted from the invoice and the remainder must be paid by the due date. The disputed amount should be notified in writing to the Supplier within 14 days of receipt of the invoice giving reasons for withholding payment. Upon receipt of the Clients dispute notice, the Supplier and Client will work together in good faith to resolve such disputes in a prompt and mutually acceptable manner. The Client agrees to pay any disputed amounts within 5 days once the issues have been resolved.
2.4 Taxes The Client agrees to pay directly or reimburse the Supplier for any taxes arising directly out of the Agreement excluding any taxes on the Supplier income.
2.5 Interest for late payment If the invoice is not settled within 30 days from receipt of invoice, the Supplier may add an administrative charge of 1.5% of the invoice amount per month.
3.1 Processing and authorisation of invoices The Client undertakes to process and settle invoices by the due dates.
3.2 Client personnel, facilities and resources The Client will ensure the Supplier has timely access to appropriate Client personnel and will arrange for the Supplier personnel to have suitable and safe access to the Client’s facilities and systems. The Client will also provide suitable space and associated resources for the Supplier personnel working on-site including all necessary computing and resources.
3.3 Training on specialised systems or tasks The Client will ensure that all Client personnel who work on the systems are adequately qualified and receive suitable training both to ensure the safety of the Client’s personnel and to safeguard the systems. Where excessive use of the Supplier’s services is demonstrated the Supplier has the right to highlight a training requirement.
3.4 Approvals and Information The Client will respond promptly, within five working days, to any Supplier requests to provide direction, information, approvals, authorisations or decisions that are reasonably necessary for the Supplier to perform the services.
3.5 System, Networking and Wireless maintenance and configuration The Client must maintain the configuration of the Systems, Networking and Wireless infrastructure and any relating cabling must be in good working order.
3.6 Licensing and Software The Client must have in force current software licences for all software on the Network. The Client must ensure that the software is current and secure by applying all appropriate validated service releases and software updates. The Client must ensure that the system is protected against the threat of virus infection by installing and maintaining up to date system protection software.
3.7 Remote Monitoring and Management Where the Remote Monitoring and Management service is to be provided it is the responsibility of the Client to ensure the provision of an installed data link and required ports are open through which the Supplier can access the system using our chosen Remote Support software and technology.
3.8 Strategic Change The Client must notify the Supplier before strategic changes are made to the systems. Advance knowledge of planned changes will ensure that the Supplier’s Service Desk have current information of the status of the systems, helping them to resolve issues affecting the systems more efficiently. The Supplier considers strategic changes to be changes that significantly alter the Network including:
4.1 Quality of Service The Supplier warrants that the Services will be performed in a professional and workmanlike manner consistent with industry standards reasonably applicable to such services. If the Client considers that a breach of this warranty has occurred and notifies the Supplier in writing stating the nature of the breach, then the Supplier will be required to urgently correct any affected services in order that they comply with the warranty.
4.2 Indemnification If, as a result of the Supplier’s negligence, the Client or Client’s employees suffer injury or property damage, the Supplier will reimburse the Client for that portion of any damages for which the Supplier is found to be liable.
4.3 Third party claims The Supplier warrants that any works of authorship written by the Supplier’s personnel will not infringe any third party copyrights, patents or trade secrets. If a third party takes action against the Client for any infringements of this nature, then the Supplier will, at its own expense, settle the claim or arrange to defend the Client in such proceedings, and, in such circumstances, the Supplier will pay all settlement costs, damages, and legal fees and expenses finally so awarded.
4.4 Exclusions The Supplier is not responsible for any infringements to third party copyrights, patents or trade secrets where the Client has made amendments to original documents and similar works prepared by the Supplier without the express approval of the Supplier, or where the Client fails to use the most recent versions of such works that have been delivered by the Supplier.
4.5 Remedies for breaches In the event of any defective performance from the Supplier or failure to furnish the agreed level of service, the Supplier will make reasonable efforts to restore the service to a good operating condition on an urgent basis.
4.6 Force majeure Except in respect of payment liabilities, neither party will be liable for any failure or delay in its performance under the Agreement due to reasons beyond its reasonable control, including acts of war, acts of God, earthquake, flood, riot, embargo, sabotage, terrorism, governmental act or failure of the Internet, provided the delayed party gives the other party prompt notice of the reasons for such cause.
5.1 Physical Access The Client is to ensure that the Supplier’s employees and sub-contractors are given reasonable authorised access to premises and equipment in order that the Services may be delivered and maintained in accordance with the terms of the Agreement.
5.2 Logical Access The Client is to ensure that the Supplier’s employees and sub-contractors are given necessary access to the software and systems in order that the Services may be delivered and maintained in accordance with the terms of the Agreement.
5.3 Compliance with Client Security Policies In the event that the Client operates formal security policies, the Supplier will ensure that its employees are made aware of such policies and will also ensure on-going compliance with these policy statements. The Client will provide the Supplier with up to date information on its security policies and will keep the Supplier informed about any changes to these policies.
5.4 Information and data security measures The Supplier will manage information and data security with reasonable efforts to restrict unauthorized access. The Supplier will make best endeavours to ensure that its employees and representatives are fully aware of the risks associated with information and data security issues.
5.5 Disaster recovery The Client will ensure that information and data under its responsibility is properly backed up on a daily basis and also that arrangements are made for recovery processes to be installed to minimise any potential disruption to the Client’s business. The Client must provide access to current backup copies to the Supplier personnel connected with the provision of the services where required.
5.6 Encryption Where requested and authorised by the Client, the Supplier agrees to utilise Secure Socket Layer (SSL) encryption technology in the electronic transmission of data to protect Private Client information from access by unauthorized users.
6.1 Intellectual property rights Both parties acknowledge the intellectual property rights of the other party whether registered or not.
6.2 Confidentiality Both parties agree to keep confidential all information concerning the other party’s business or its ideas, products, clients or services that could be considered to be “confidential information”. “Confidential information” is any information belonging to or in the possession or control of a party that is of a confidential, proprietary or trade secret nature and that is furnished or disclosed to the other party. Confidential information will remain the property of the disclosing party and the receiving party will not acquire any rights to that confidential information.
6.3 Court orders If the receiving party receives a Court Order to divulge any confidential information belonging to the disclosing party, then the receiving party is permitted to release such information to the court in accordance with any Court Order so served.
6.4 Destruction of data and records or return on termination Upon termination of the Agreement, the receiving party, at the option of the disclosing party, will return or destroy all confidential information belonging to the other party.
7.1 Governing law The laws pertaining in the jurisdiction of the Country or County where the Supplier’s principal office is located will govern the Agreement.
7.2 Export control Both Supplier and Client agree to comply fully with all relevant export laws and regulation of the country or countries where their offices are located.
7.3 Informal Resolution In the event of dispute, the parties will attempt to resolve any such disputes through informal negotiation and discussion. Formal proceedings should not be commenced until such informal negotiations and discussions are concluded without resolution.
7.4 Arbitration Any unresolved dispute should be referred to a qualified independent arbitrator acceptable to both parties. The arbitrator will have no authority to award any damages that are excluded by the terms of the Agreement. In the event that a suitable independent arbitrator cannot be identified and agreed on by both parties, then the courts shall be requested to appoint one.
7.5 Limitation of Action Neither party may bring proceedings more than 12 months after the actual event occurred except for proceedings for non-payment.
7.6 Limitation of liability Should the Client become entitled to claim damages from the Supplier, the Supplier will be liable only for the amount of the Client’s actual direct damage up to the amount that the Supplier has actually received from the Client as payment for the specific services or items that are the subject of the claim. The Supplier is not responsible for any damages caused by the failure of the Client or its Affiliates or other suppliers to perform their responsibilities. The limitation of liability included in this section will survive the Agreement.
8.1 Termination for Convenience Either party may terminate the agreement by giving 90 days written notice prior to the anniversary date of the service. All agreements automatically renew for a further 12 months in the event of no notice.
8.2 Termination for Cause If either party fails to perform its obligations under the Agreement, and does not, within 30 days of receiving written notice describing such failure, agree to take measures to cure such failure, then the Agreement may be terminated forthwith.
8.3 Payment on termination In the event of termination of the Agreement for any cause, the Supplier will continue to be paid up to the effective date of termination for any fees due for services delivered up to that date.
9.1 Notices Notices required under the Agreement are to be sent to the Supplier. Notices are to be sent in writing by registered post, recorded post, express courier service or be delivered personally.
9.2 Standard of care Each party will act in good faith in the performance of its respective duties and responsibilities and will not unreasonably delay or withhold the giving of consent or approval required for the other party under the Agreement. Each party will provide an acceptable standard of care in its dealings with the other party and its employees.
9.3 Assignment Neither party may assign or otherwise transfer the Agreement without the prior written consent of the other party. In the event that consent for assignment is given, the terms of the Agreement will be binding upon each party’s respective successor.
9.4 Severability The provisions of the Agreement shall be deemed severable, and the unenforceability of any one of the provisions shall not affect the enforceability of other provisions. In the event that a provision is found to be unenforceable, the parties shall substitute that provision with an enforceable provision that preserves the original intent and position of the parties.
9.5 Changes to the Agreement All changes to the Agreement must be approved in writing by authorised officials of both parties.
9.6 Non-solicitation The Client undertakes to the Supplier that the Client shall not, without the prior written consent of the Supplier, directly or indirectly, on its own behalf or on behalf of, or in conjunction with, any company, firm, or other person:
9.6.1 for a period of twelve months from the Termination Date employ be directly involved in the employment of any Key Employee with a view to such Key Employee working for or providing services to the Client and/or a Competing Business; or
9.6.2 for a period of twelve months from the Termination Date, entice or solicit, or endeavour to entice or solicit, any Key Employee away from the Supplier, with a view to such Key Employee working for or providing services to the Client and/or a Competing Business.
9.7 The Client acknowledges and agrees that each restriction in clause 9.6 constitutes an entirely separate and independent restriction on the Client and that the duration, extent and application of each of such restrictions are no greater than is necessary for the protection of the legitimate interests of the Supplier. The Client agrees that if any of such restrictions will be adjudged to be void or ineffective as going beyond what is reasonable in all the circumstances for the protection of the interests of the Supplier or for any other reason, but would be valid and effective if part of the wording of it was deleted and/or any period or area referred to in it reduced in time or scope, such restrictions will apply with such deletions or modifications as may be necessary to make them valid and effective.
9.8 If any person who is an employee or was formerly an employee of the Supplier solicits, induces or endeavours to solicit or induce you to end the contract between the Supplier and the Client, you will immediately inform a director of the Supplier in writing.
10 Without prejudice to the restrictions contained in Clause 9.6, if at any time before the restrictions in clause 9.6 above expire, a Key Employee transfers from the Supplier to the Client (for whatever reason, including but not limited to any automatic transfer of employment as a result of the operation of law), whether under a contract of service or contract for services, and whether on a permanent or temporary basis, the Client will:
10.1 immediately notify the engagement to the Supplier; and
10.2 pay to the Supplier an introduction fee equal to £7,500.
10.3 In the whole of Clause 9.6 and 9.7 the following definitions apply:
Competing Business means any business in the United Kingdom which competes, or proposes to compete, with any business carried on by the Supplier;
Key Employee means any individual provided by the Supplier to provide the Services to the Client in the Relevant Period;
Relevant Period means the period of 12 months ending with the Termination Date; and
Termination Date the date on which this Agreement terminates for whatever reason.
It is understood and agreed that this Agreement does not grant the Supplier any exclusive rights to do business with the Client and also that the Client may contract with other suppliers for the procurement of similar services. Nothing in the Agreement prevents the Supplier from marketing, developing, using and performing similar services or products to other potential clients.
