1. DEFINITIONS AND INTERPRETATION
1.1 The definitions and rules of interpretation in this clause apply in these terms and conditions.
Business Day: any day which is not a Saturday, Sunday or public or bank holiday in the United Kingdom.
Confidential Information: all confidential information (however recorded or preserved) disclosed by a party or its Representatives involved in the provision or receipt of the Services who need to know the confidential information in question to the other party and that party’s Representatives in connection with this agreement, which is either labelled as such or else should reasonably be considered as confidential because of its nature and the manner of its disclosure.
Contract: the Customer’s purchase order and the Supplier’s acceptance of it under condition 3.
Customer: the person, firm or company who purchases the Services from the Supplier.
Customer’s Project Manager: the Customer’s manager for the Services appointed in accordance with condition 6.1(a).
Effective Date: the date of this agreement.
Input Material: any documents in writing including data or other information provided by the Customer relating to the Services.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, trade names, domain names, rights in get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, moral rights, rights in confidential information (including without limitation know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered, and including without limitation all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Quotation: the Supplier’s quotation for the Services.
Representatives: the employees, officers, representatives, advisers, agents or sub-contractors of either party.
Service Level Agreement: the service level agreement provided by the Supplier in respect of the Services, as set out in the Schedule.
Services: the services to be provided by the Supplier under the Contract.
Supplier: Majenta Solutions Limited (Company No: 03056978) whose registered office is at 3 Argosy Court Scimitar Way, Whitley Business Park, Coventry, CV3 4GA, England.
Supplier’s Project Manager: the Supplier’s manager for the Services, appointed in accordance with condition 5.4.
1.2 Clause and Schedule headings shall not affect the interpretation of this agreement.
1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.5 Words in the singular shall include the plural and vice versa and a reference to one gender shall include a reference to the other genders.
1.6 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
1.7 A reference to writing or written includes e-mail.
1.8 References to clauses and Schedules are to the clauses and Schedules of this agreement and references to paragraphs are to paragraphs of the relevant Schedule.
1.9 Any words following the terms including, include, in particular, for example, or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2. APPLICATION OF CONDITIONS
2.1 These conditions shall:
(a) apply to and be incorporated in the Contract; and
(b) prevail over any inconsistent terms or conditions contained in, or referred to in, the Customer’s purchase order, confirmation of order, or specification, or implied by law, trade custom, practice or course of dealing.
2.2 No addition to, variation of, exclusion or attempted exclusion of any term of the Contract shall be binding on the Supplier unless in writing and signed by a duly authorised representative of the Supplier.
2.3 No Representative of the Supplier has any authority to add to or vary this agreement or to make any representation or warranty unless such addition or variation or representation or warranty is in writing and signed by a director of the Supplier or any named person authorised on behalf of the Supplier.
2.4 Any typographical, clerical or other error or omission in any sales literature, Quotation, price list, acceptance of offer, invoice or other document or information issued by the Supplier shall be subject to correction without any liability on the part of the Supplier.
2.5 The Supplier may at any time without notifying the Customer make any changes to the Services which are necessary to comply with any applicable safety or other statutory provisions and requirements affecting the work to be carried out or the conduct of the Supplier’s Representatives while on or in the vicinity of the Customer’s premises (if relevant) or which do not materially affect the nature or the quality of the Services.
3. EFFECT OF PURCHASE ORDER
3.1 The Customer’s purchase order constitutes an offer by the Customer to purchase the Services specified in it on these conditions; accordingly, the execution and return of the acknowledgement copy of the purchase order form by the Supplier, or the Supplier’s commencement or execution of work pursuant to the purchase order, shall establish a contract for the supply and purchase of those Services on these conditions. The Customer’s standard terms and conditions (if any) attached to, enclosed with, or referred to in, the purchase order shall not govern the Contract.
3.2 The Customer agrees that any Services are limited to those set out in the Contract.
4. ORDERS AND SPECIFICATIONS
4.1 Each order or acceptance of a Quotation for Services by the Customer shall be deemed to be an offer by the Customer subject to the conditions set out in this agreement. The Customer shall ensure that its order is complete and accurate.
4.2 A binding contract shall not come into existence between the Supplier and the Customer unless and until the Supplier issues a written order acknowledgement to the Customer, or the Supplier delivers the Services to the Customer (whichever occurs earlier).
4.3 If an order which has been accepted by the Supplier is cancelled by the Customer within 14 days, an administrative charge of 25% of the value of the Services will be charged to the Customer.
4.4 No order which has been accepted by the Customer or acknowledged by the Supplier may be cancelled by the Customer after 14 days, except with the agreement in writing of a director of the Supplier or any named person authorised on behalf of the Supplier.. Any cancellation not agreed will not be accepted and full payment of the value of the Services will be charged to the Customer and the Customer shall indemnify the Supplier in full against all losses (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Supplier as a result of cancellation.
4.5 The Supplier may deliver the Services by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions of the applicable Contract. Each instalment shall be a separate Contract and no cancellation or termination by either party of any one Contract relating to an instalment shall entitle the Customer to repudiate or cancel any other Contract or instalment.
5. SUPPLIER’S OBLIGATIONS
5.1 The Supplier shall use reasonable endeavours to perform the Services with reasonable skill and care and in accordance with this agreement and, if applicable, the Service Level Agreement.
5.2 The Supplier shall use reasonable endeavours to meet the performance dates specified in the Contract, but any such dates shall be estimates only and time shall not be of the essence of the Contract unless specifically stated.
5.3 All dates for completion of the Services (in whole or in part), may be extended by a reasonable period if delay is caused by:
(a) any act or omission of the Customer, and/or any of the Customer’s Representatives; or
(b) any cause beyond the Supplier’s reasonable control.
5.4 The Supplier shall appoint the Supplier’s Project Manager who shall have authority to liaise with the Customer on the Supplier’s behalf on all matters relating to the Services. The Supplier shall use reasonable endeavours to ensure that the same person acts as the Supplier’s Project Manager throughout the term of this agreement, but may replace him from time to time where reasonably necessary in the interests of the Supplier’s business.
5.5 The Supplier shall have no obligation to provide the Services where faults arise from:
(a) misuse, incorrect use of or damage to the supported system by the Customer; or
(b) failure by the Customer to maintain the necessary environmental conditions for use of the supported system; or
(c) relocation or installation of the supported system without prior notice being given to the Supplier’s Project Manager; or
(d) any breach by the Customer of its obligations under this agreement and/or the Service Level Agreement.
5.6 Relocation or re-installation of the system must only be performed by qualified Customer staff, by the Supplier’s staff or a person acting under the Supplier’s instructions.
6. CUSTOMER’S OBLIGATIONS
6.1 The Customer shall:
(a) co-operate with the Supplier in all matters relating to the Services and appoint the Customer’s Project Manager, who shall have the authority to liaise with the Supplier on the Customer’s behalf in respect of the Services;
(b) provide in a timely manner such access, including remote access, to the Customer’s premises and data, and such office accommodation and other facilities, as is requested by the Supplier;
(c) permit the Supplier and its Representatives to have free and unlimited parking (within its boundaries, if such a facility exists) and access to the Customer’s premises at all reasonable times for the purpose of enabling the Supplier to exercise its rights and provide the Services and its obligations under the Contract (if relevant);
(d) give reasonable prior notice to the Supplier of any intended building works at the Customer’s premises which may affect the delivery of the Services (if relevant);
(e) provide the Supplier, without limitation, with all consents, permissions, rights and information as the Supplier may reasonably require in relation to the provision of the Services;
(f) provide the Supplier with use of electricity, light and heat free of charge, and the supply of internet free of charge, close to the intended works at the Customer’s premises for use to download ‘drivers’ to a laptop for use in the provision of the Services (if relevant);
(g) ensure that appropriate environmental conditions are maintained for the supported system and shall take all reasonable steps to ensure that the supported system is operated in a proper manner by the Customer’s Representatives;
(h) make available at the Customer’s premises, such facilities free of charge as the Supplier shall reasonably require in order to discharge its obligations hereunder including (without limitation) adequate workspace, storage and safekeeping of equipment and software, furniture and other equipment (if relevant);
(i) at its own expense supply in a timely manner the Supplier with the Input Material to enable the Supplier to provide the Services in accordance with the Contract. The Customer shall ensure the accuracy of all Input Material. The Supplier shall have no liability for any loss or damage or accidental loss or damage resulting in the loss of the Input Material;
(j) ensure that all equipment necessary for the Supplier to perform the Services has been delivered to the location where the Services are to be performed and such equipment is readily available and accessible to the Supplier;
(k) provide in a timely manner such information as the Supplier may request, and ensure that such information is accurate in all material respects;
(l) be responsible (at its own cost) for preparing the relevant premises and environment for the supply of the Services (if relevant);
(m) take all reasonable precautions to protect the health and safety of the Supplier’s Representatives while on the Customer’s premises (if relevant);
(n) be responsible for the protection and recovery of any data held on disk or other recording services and shall be responsible for taking regular back-ups; and
(o) ensure that all systems of work conducted at the Customer’s premises are conducted with due care and that the premises and all facilities and systems of work conducted therein comply with all statutory requirements and any and all laws, regulations, directions, conditions and codes of practice imposed by any governmental or regulatory authority (if relevant), including without limitation, the UK Bribery Act 2010.
6.2 The Customer is responsible for the accuracy of all information provided by it or on its behalf to the Supplier. If any such information proves to be inaccurate and in consequence the Supplier incurs any increase in the costs of performing its obligations, then the Supplier shall be entitled to be paid those additional costs.
6.3 If the Supplier’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer or the Customer’s Representatives, the Customer shall in all circumstances be liable to pay to the Supplier on demand all reasonable costs, charges or losses sustained or incurred by it (including, without limitation, any direct or indirect consequential losses, loss of profit and loss of reputation, loss or damage to property, injury to or death of any person and loss of opportunity to deploy resources elsewhere), subject to the Supplier confirming such costs, charges and losses to the Customer in writing.
6.4 The Customer shall not solicit or entice away from the Supplier or employ or attempt to employ any person who is, or has been, engaged as an employee, officer, agent or sub-contractor of the Supplier for a minimum period of 12 months after such employee, officer, agent or sub-contractor leaves the employment of the Supplier except with the express written permission of the Supplier.
6.5 Any consent given by the Supplier in accordance with condition 6.4 shall be subject to the Customer paying to the Supplier a sum equivalent to 20% of the then current annual remuneration of the Supplier’s employee or sub-contractor or, if higher, 20% of the annual remuneration to be paid by the Customer to such employee or sub-contractor.
6.6 Without prejudice to any other rights or remedies that either party may have, each party acknowledges and agrees that damages alone would not be an adequate remedy for any breach of the terms of this agreement by either party. Accordingly, the Supplier shall be entitled, without proof of special damages, to the remedies of injunction, specific performance or other equitable relief for any threatened or actual breach of the terms of this agreement and the Customer shall indemnify the Supplier against any costs reasonably incurred. Nothing in this clause shall prevent an employee, officer, agent or sub-contractor of the Supplier responding to a bona fide national advertising campaign open to all-comers and not specifically targeted at the Supplier’s employees, officers, agents or sub-contractors.
7. CHANGE CONTROL
7.1 The Customer’s Project Manager and the Supplier’s Project Manager shall meet at least once every three months to discuss matters relating to the Services. If either party wishes to change the scope of the Services, it shall submit details of the requested change to the other in writing.
7.2 If either party requests a change to the scope or execution of the Services, the Supplier shall, within a reasonable time, provide a written estimate to the Customer of:
(a) the likely time required to implement the change;
(b) any variations to the Supplier’s charges arising from the change;
(c) the likely effect of the change on the Services; and
(d) any other impact of the change on the terms of the Contract.
7.3 If the Supplier requests a change to the scope of the Services, the Customer shall not unreasonably withhold or delay consent to it.
7.4 If the Customer wishes the Supplier to proceed with the change, the Supplier has no obligation to do so unless and until the parties have agreed in writing on the necessary variations to its charges and any other relevant terms of the Contract to take account of the change.
8. CHARGES AND PAYMENT
8.1 The Customer shall pay the amounts (without deduction or set off) in full as set out in the Contract and any other related charges including, without limitation, charges that the Supplier incurs with third parties to comply with its obligation under this agreement (Charges). At the end of any annual period, the Supplier shall invoice the Customer for the Charges that are then due, together with any expenses, costs of materials and VAT, where appropriate.
8.2 Overtime may be worked at the request of the Customer and with the Supplier’s consent. Overtime hours will be charged in accordance with the prevailing rates at the time as stated in the Contract.
8.3 All amounts and fees stated or referred to in this agreement are exclusive of value added tax, which shall be added to the Supplier(s) invoice at the appropriate rate.
8.4 The Customer shall pay each invoice, which shall include any other related charges, submitted to it by the Supplier in full, and in cleared funds, within 30 days of the date of the invoice.
8.5 Written notice of any dispute in relation to the Charges and any other costs must be received by the Supplier in writing prior to the due date of the invoice in question. If no such written notice is received, the Customer shall forfeit its right to dispute such Charges and/or costs. Such notice will include the following information:
(a) the number of the disputed invoice;
(b) the specific items which are in dispute; and
(c) the reasons why they are disputed, together with supporting evidence.
8.6 Any dispute in relation to part of the Charges and/or costs shall not release the Customer from its obligation of paying the balance of the invoice.
8.7 The Customer shall indemnify the Supplier from and against all costs and expenses incurred by the Supplier in recovering any undisputed sum due to the Supplier from the Customer in the event that the Customer fails to pay in accordance with clause 8.4 above.
8.8 Without prejudice to any other right or remedy that the Supplier may have, if the Customer fails to pay the Supplier on the due date the Supplier may:
(a) charge interest on such sum from the due date for payment until payment of the sum, whether before or after any judgment. Interest under this clause will accrue each day as determined in the Late Payment of Commercial Debts (Interest) Act 1998 as amended; and
(b) suspend all further Services until payment has been made in full.
8.9 Time for payment shall be of the essence of the Contract.
8.10 All payments payable to the Supplier under the Contract shall become due immediately on termination of the Contract, despite any other provision. This condition is without prejudice to any right to claim for interest under the law, or any such right under the Contract.
8.11 The Supplier may, without prejudice to any other rights it may have, set off any liability of the Customer to the Supplier against any liability of the Supplier to the Customer, but the Customer may not set off any liability of the Supplier to the Customer against any liability of the Customer to the Supplier..
8.12 The Supplier may vary and increase the Charges from time to time by giving not less than 30 days’ written notice to the Customer.
8.13 Without prejudice to the provisions of clauses 8.8 and 8.10, in the event of the Supplier suffering an increase in the costs borne by it to the provision of the Services for reasons outside the Supplier’s control (including, without limitation, the introduction or implementation of any law, statute, decision, regulation or directive which has the effect of increasing the Supplier’s costs), the Supplier shall be entitled to increase its charges by an equivalent amount.
9. INTELLECTUAL PROPERTY RIGHTS
All Intellectual Property Rights and all other rights in the Services shall be owned by the Supplier. The Supplier hereby licenses all such rights to the Customer free of charge and on a non-exclusive, worldwide basis to such extent as is necessary to enable the Customer to make reasonable use of the Services as is envisaged by the parties. If the Supplier terminates the Contract under condition 13, this licence will automatically terminate.
10. CONFIDENTIALITY
10.1 The term Confidential Information does not include any information that:
(a) is or becomes generally available to the public (other than as a result of its disclosure by the receiving party or its Representatives in breach of this clause 10);
(b) was available to the receiving party on a non-confidential basis before disclosure by the disclosing party;
(c) was, is, or becomes, available to the receiving party on a non-confidential basis from a person who, to the receiving party’s knowledge, is not bound by a confidential agreement with the disclosing party or otherwise prohibited from disclosing the information to the receiving party;
(d) was known to the receiving party before the information was disclosed to it by the disclosing party; or
(e) the parties agree in writing is not confidential or may be disclosed.
10.2 Each party shall keep the other party’s Confidential Information confidential and shall not:
(a) use any Confidential Information except for the purpose of exercising or performing its rights and obligations under this agreement (Permitted Purpose); or
(b) disclose any Confidential Information in whole or in part to any third party, except as expressly permitted by this clause.
10.3 A party may disclose the other party’s Confidential Information to those of its Representatives who need to know that Confidential Information for the Permitted Purpose, provided that:
(a) it informs those Representatives of the confidential nature of the Confidential Information before disclosure; and
(b) at all times, it is responsible for the Representatives’ compliance with the confidentiality obligations set out in this clause 10.
10.4 A party may disclose Confidential Information to the extent required by law, by any governmental or other regulatory authority, or by a court or other authority of competent jurisdiction provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of the disclosure as possible.
10.5 Each party reserves all rights in its Confidential Information. No rights or obligations in respect of a party’s Confidential Information, other than those expressly stated in this agreement, are granted to the other party, or are to be implied from this agreement.
10.6 The provisions of this clause 10 shall continue to apply after termination of this agreement.
11. WARRANTIES
11.1 The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill. Where the Supplier supplies in connection with the provision of the Services any goods supplied by a third party, the Supplier does not give any warranty, guarantee or other term as to their quality, fitness for purpose or otherwise, except that so far as it is permitted to do so the Supplier is prepared to pass on to the Customer such benefit of any warranty or guarantee as is normally given with such goods by the supplying company. However, the Supplier can accept no liability whatsoever that such warranty, guarantee or term will be passed to the Customer by the supplying company.
11.2 The Customer warrants that all existing supporting software and storage media used in connection with the Services by the Supplier, is licensed to the Customer.
11.3 The Customer warrants that the storage media on which the Services are supplied will be free from defects in materials and workmanship under normal use.
11.4 The Supplier shall be under no liability under the above warranties for any loss, damage, costs, expenses or other claims for compensation arising from any Input Material or instructions supplied by the Customer which are incomplete, incorrect, inaccurate, illegible, out of sequence or in the wrong form, or arising from their late arrival or non-arrival, or any fault of the Customer.
11.5 Subject as expressly provided in the Contract, all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
12. LIMITATION OF LIABILITY
12.1 This clause 12 sets out the entire financial liability of the Supplier (including any liability for the acts or omissions of its Representatives) to the Customer in respect of:
(a) any breach of this agreement;
(b) any use made by the Customer of the Services or any part of them; and
(c) any representation, statement or tortious act or omission (including negligence) arising under or in connection with this agreement.
12.2 Except as expressly and specifically provided in this agreement:
(a) the Customer assumes sole responsibility for results obtained from the use of the Services by the Customer, and for conclusions drawn from such use. The Supplier shall have no liability for any damage caused by design faults once the Services have been accepted and signed off by the Customer. The Supplier shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Supplier by the Customer in connection with the Services, or any actions taken by the Supplier at the Customer’s direction; and
(b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this agreement.
12.3 Nothing in this agreement excludes the liability of the Supplier:
(a) for death or personal injury caused by the Supplier’s negligence; or
(b) for fraud or fraudulent misrepresentation.
12.4 The Service Level Agreement states the Customer’s full and exclusive right and remedy, and the Supplier’s only obligation and liability in respect of, the performance and/or availability of the Services, or their non-performance and non-availability.
12.5 Subject to clause 12.3 and clause 12.4:
(a) the Supplier shall not be liable whether in tort (including for negligence or breach of statutory duty of the Supplier, its Representatives or otherwise), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect, incidental, exemplary, punitive or consequential loss costs, damages, charges or expenses however arising under this agreement, including loss or damage suffered by the Customer as a result of an action brought by a third party, even if such loss was reasonably foreseeable; and
(b) the Supplier’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement shall be limited to the price paid by the Customer for the Services during the 12 months preceding the date on which the claim giving rise to the liability arose.
12.6 The Customer shall indemnify the Supplier from and against all and any loss, damage, claim or liability otherwise arising due to the death, personal injury or damage to the property of the Representatives of the Supplier whilst they are on the Customer’s premises for the purposes of the provision of the Services.
12.7 The Supplier will not be responsible for any infection of any Customer computer system with a virus. This exemption shall not reduce the Supplier’s responsibility to use reasonable efforts to detect and remove any virus it discovers and shall not exempt the Supplier from any wilful and negligent action to introduce a virus during the provision of the Services.
12.8 The Supplier shall not be liable for any loss to the Customer’s data. The Customer shall be responsible for maintaining and verifying all back-ups of its data.
12.9 The Customer acknowledges and agrees that the limitations contained in this clause 12 are reasonable and acceptable to the Customer
13. TERMINATION
13.1 This agreement shall commence on the Effective Date and shall continue for the period set out in the Contract (Initial Term), unless otherwise terminated as provided in this clause 13.
13.2 Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate this agreement without liability to the other if:
(a) the other party commits a material breach of any of the terms of this agreement and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or
(b) an order is made or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order in relation to the other party; or
(c) an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the other party, or notice of intention to appoint an administrator is given by the other party or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986); or
(d) a receiver is appointed of any of the other party’s assets or undertaking, or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other party, or if any other person takes possession of or sells the other party’s assets; or
(e) the other party makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way; or
(f) the other party ceases, or threatens to cease, to trade; or
(g) the other party takes or suffers any similar or analogous action in any jurisdiction in consequence of debt.
13.3 On termination of this agreement for any reason:
(a) all licences and rights granted by the Supplier under this agreement shall immediately terminate;
(b) each party shall return and make no further use of any equipment, property, materials and other items (and all copies of them) belonging to the other party; and
(c) the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.
13.4 Upon termination of the Contract under this clause 13 the Customer shall pay to the Supplier, on demand, all arrears of payments, interest and other sums payable under the Contract up to the date of termination and all costs and expenses (including legal costs) on a full indemnity basis incurred or sustained by the Supplier in enforcing any of the terms of the Contract.
13.5 For the avoidance of doubt upon termination of the Contract under this clause 13 the Supplier shall have no further obligation to provide all or any of the Services and shall be entitled to
13.6 cease to provide the Services hereunder without further notice to the Customer and shall not be under any liability whatsoever to the Customer in consequence of the Supplier ceasing to provide all or any of the Services. Termination of the Contract shall not affect any rights which have accrued prior to termination.
14. FORCE MAJEURE
14.1 The Supplier shall have no liability to the Customer under this agreement if it is prevented from or delayed in performing its obligations under this agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, acts of God, acts of any governmental body, war, riot, insurrection, sabotage, pandemic, armed conflict, embargo, fire, earthquakes, explosion, flood, strike or other labour disturbance, injunction, interruption of or delay in transportation, unavailability of or interruption or delay in telecommunications, internet disturbance, electrical or any other third party services, failure of hardware or network components, virus attacks, or hackers, failure of third party software (including without limitation, ecommerce software, payment gateways, chat, statistics or free scripts), delays due to dependence on third parties, or inability to obtain raw materials, supplies, or power used in or equipment needed for the provision of this agreement or any state of the Customer’s premises or presence of any substances thereat rendering them dangerous in the Supplier’s opinion to any Representative of the Supplier (Force Majeure Event); and the duty of the Supplier to provide the Services shall be suspended and shall only recommence when the circumstances giving rise to such suspension shall have ceased.
14.2 If a Force Majeure Event prevents, hinders or delays the Supplier’s performance of its obligations for a continuous period of more than 12 weeks, either party may terminate this agreement immediately by giving written notice to the other party.
15. DATA PROCESSING
15.1 The parties have agreed to enter into the Data Processing Agreement (Data Processing Agreement) which shall be provided by the Supplier. The Data Processing Agreement shall govern the processing of personal data of data subjects subject to data protection legislation in the context of the Services provided by the Supplier
16. WAIVER
16.1 A waiver of any right under this agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given.
16.2 Unless specifically provided otherwise, rights arising under this agreement are cumulative and do not exclude rights provided by law.
17. SEVERANCE
17.1 If any provision (or part of a provision) of this agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
17.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
18. ENTIRE ARRANGEMENT
18.1 This agreement, and the Service Level Agreement, and any documents referred to in it, constitutes the whole agreement between the parties and supersedes any previous arrangements, understandings or agreements between them relating to the subject matters they cover.
18.2 This agreement shall prevail over any inconsistent terms or conditions contained in the Customer’s purchase order, confirmation of order, or specification or implied by law, trade custom, practice or course of dealing.
18.3 Each of the parties acknowledges and agrees that in entering into this agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this agreement or not) relating to the subject matter of this agreement, other than as expressly set out in this agreement.
19. ASSIGNMENT
19.1 Except in respect of an assignment of either party’s entire business and assets to a third party, neither party shall, without the prior written consent of the other party, assign, transfer, charge, sub-contract or deal in any other manner with any of its rights or obligations under this agreement.
19.2 The Supplier may subcontract or delegate in any manner any or all of its obligations under this agreement to any third party or agent acting on the Supplier’s behalf.
20. NO PARTNERSHIP OR AGENCY
Nothing in this agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
21. VARIATION
21.1 Subject to clause 20.2, no variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
21.2 This agreement may be modified from time to time. Any such variation will be communicated to the Customer 30 days before they are put into effect.
21.3 No Representative of the Supplier has any authority to add to or vary this agreement or to make any representation or warranty unless such addition or variation or representation or warranty is in writing and signed by a duly authorised representative of the Supplier.
22. Third party rights
This agreement does not confer any rights on any person or party (other than the parties to this agreement and (where applicable) their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
23. NOTICES
23.1 Any notice required to be given under this agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in this agreement, or such other address as may have been notified by that party for such purposes, or sent by email to such address as notified by either party from time to time.
23.2 A notice delivered by hand or by email shall be deemed to have been received when delivered or at the time of transmission in the case of emails (or if delivery or the time of transmission is not in business hours, at 9.00 am on the first Business Day following delivery or transmission). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post.
24. GOVERNING LAW AND JURISDICTION
24.1 This agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by, and construed in accordance with, the law of England.
24.2 The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).
SERVICE LEVEL AGREEMENT
1. AGREEMENT
1.1 This Service Level Agreement (SLA) sets out the details of the Services to be provided by the Supplier to the Customer and the terms applicable to the same.
1.2 In the event of any inconsistency between this SLA, the Contracts and the Terms and Conditions for the Supply of Services (Terms) and any other terms provided by the Supplier, the Terms and Conditions for the Supply of Services shall prevail.
1.3 The definitions in the Terms apply in this SLA.
1.4 Clause headings do not affect the interpretation of this SLA.
2. TERM
2.1 This SLA and the Services to be performed pursuant to the Contract shall commence on the Effective Date unless otherwise stated in the Contract.
2.2 This SLA shall automatically terminate on termination of the Terms (for whatever reason).
3. SERVICES AVAILABILITY
For the purpose of this clause 3 “Service Availability” means the percentage of a particular month (based on 24 hour days and an assumed 30 day month) that access to the Services is available and such shall be calculated by the number of hours the Services are available to the Customer plus the total number of hours (if any) the Services are scheduled to be unavailable, divided by the total number of hours in that month. “Normal Business Hours” shall mean 9.00am to 5.00pm local UK time, each Business Day.
3.1 The Supplier will use its reasonable endeavours to provide the Customer with 100% “Service Availability” of the Services.
3.2 Provided the Customer has complied with the notification procedure set out in clause 3.3 below, the Supplier will respond to a notification of “Service Unavailability” within 30 minutes of it being received on a Business Day. The Supplier will then use its reasonable endeavours to restore access to the Services as soon as reasonably practicable from the Supplier acknowledging receipt of the Customer’s notification.
3.3 The Customer shall notify the Supplier of “Service Unavailability” through the Supplier’s helpdesk during Normal Business Hours.
3.4 Subject to the remaining provisions of this clause 3 if the “Service Unavailability” of the Services is less than 100%, the Supplier will issue a service credit to the Customer in accordance with the following table, such service credit being calculated on the basis of the monthly fee for the affected Service.
| Service Availability | Unavailable for up to | Credit % |
| Over 99.5% | 3.6 hours | 0% |
| 98% to 99.5% | 14 hours | 5% |
| 95% to 98% | 36 hours | 10% |
| 90% to 95% | 72 hours | 15% |
| Below 90% | Over 72 hours | 100% |
3.5 To receive a service credit the Customer must make a request by sending an email message to info@majentasolutions.com. The email message must include the dates and times of the “Service Unavailability” and must be received by the Supplier within 5 Business Days after the Services were unavailable. If the “Service Unavailability” is agreed by the Supplier, service credits will be deducted from the next fee payment due by the Customer after the Supplier’s receipt of the Customer’s service credit request. For the avoidance of doubt service credits are non-refundable and can be used only by way of set off against outstanding or future charges due from the Customer to the Supplier.
3.6 Notwithstanding anything to the contrary contained in this SLA, the total amount of service credits available to the Customer in any particular month shall in no event exceed the total Service fee payable by the Customer for such month for the affected Service.
3.7 For telephone support incidents that cannot be resolved remotely or by phone and where it is deemed an on-site visit is required, this will be agreed with the Customer prior to the Supplier dispatching on –site assistance.
3.8 The Supplier shall not be in breach of this SLA or held responsible to pay any service credits under this SLA in connection with any failure or deficiency of the Services caused by or associated with:
3.8.1 circumstances beyond the Supplier’s reasonable control, including without limitation, acts of any governmental body, war, insurrection, sabotage, armed conflict, embargo, fire, flood, strike or other labour disturbance, interruption of or delay in transportation, unavailability of or interruption or delay in telecommunications, internet disturbance, electrical or any other third party services, failure of hardware or network components, virus attacks, or hackers, failure of third party software (including without limitation, ecommerce software, payment gateways, chat, statistics or free scripts), delays due to dependence on third parties, or inability to obtain raw materials, supplies, or power used in or equipment needed for the provision of this SLA;
3.8.2 scheduled and routine maintenance and emergency maintenance and upgrades required for any reason;
3.8.3 DNS (Domain Name Systems) issues outside the control of the Supplier;
3.8.4 any act or omission of the Customer or its Representatives in breach of its obligations under this SLA including acts or omissions such as, without limitation, customs, scripting or coding (e.g., CGI, PER, HTML, ASP);
3.8.5 outages elsewhere on the internet that hinder access to the Customer’s account;
3.8.6 instructions received from unauthorised representatives of the Customer;
3.8.7 users having forgotten their log-in credentials;
3.8.8 users’ acts or omissions or problems with their equipment or internet connection;
3.8.9 any failure by the Customer to comply with its obligations under the Terms and this SLA.
3.9 The Customer acknowledges that it is necessary for the Supplier to perform routine maintenance on the servers on which the Services are located. Such maintenance requires taking services offline. The Supplier reserves the right to plan a scheduled outage with not less than 24 hours prior written notice to the Customer, such notification to be sent by email to the designated system administrator of the Customer. The Customer will procure that its designated system administrator will notify all persons within its organisation of scheduled outages.
3.10 The Supplier will use its reasonable endeavours to schedule outages at nonpeak hours and limit them to strictly necessary upgrades and required maintenance but the Customer acknowledges and agrees that there may be occasions when emergency maintenance is required including, without limitation, to fix urgent problems or prevent a situation that could cause greater problems which cannot wait for scheduled maintenance times. In this case the Supplier will notify the Customer of the emergency maintenance required and be entitled to carry out the same.
SCHEDULE |
|
| ACCESS METHOD | |
| Browser | Most reasonably current browsers e.g., Internet Explorer, Firefox, Safari |
| Connection type | https)
|
| Internet connection | Reasonable spare bandwidth |
| INFRASTRUCTURE | |
| Provider | Majenta Solutions Limited |
| Servers | Microsoft Windows operating system |
| HELPDESK | Primary point of contact is Majenta [HelpDesk]
Available 09:00 to 17:00 on a Business Day |
| SERVICE AVAILABILITY
|
24 hours per day, every day |