Identiom Master Services Agreement

1. Interpretation

1.1 The following definitions and rules of interpretation apply in these terms & conditions (unless the context requires otherwise).

Charges means the sums payable to the Company by the Client and specified in the Order Form;

Change Request as defined in clause 6.2;

Competent Authority means any relevant competent authority with regulatory or legal jurisdiction over the Client which may include, without limitation, the Financial Conduct Authority, the Prudential Regulation Authority or the Bank of England;

Content means data stored or transmitted by the Client or on the Client’s behalf including: (i) data stored in Client’s equipment or media; (ii) data stored by the Client in the Company’s equipment or media; (iii) data transmitted or requested by the Client over a network provided or procured by the Company; and (iv) any data that is stored, transmitted or received by the Company on behalf of the Client in the reasonable performance of the services governed by this Agreement;

Data Protection Legislation means the Data Protection Act 2018, the UK GDPR, and all applicable laws and regulations relating to the processing of personal data and privacy, including guidance issued by the Information Commissioner, as such laws and regulations may be amended or replaced from time to time, and personal data, data controller, data processor, data subject and processing shall when used in this Agreement have the meanings given to them in the Data Protection Legislation;

Force Majeure Event means any cause preventing a Party from performing any or all of its obligations which arises from or is attributable to acts, events, omissions or accidents beyond the reasonable control of the Party so prevented;

Goods the hardware specified in Schedule 1, if any;

Inappropriate Content means any Content or other data that may infringe any applicable laws, regulations or third party rights (including, without limitation, material which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial or religious hatred, menacing, blasphemous or in breach of any third party intellectual property rights);

Intellectual Property Rights means patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;

Order Form means a quotation or order form agreed between the Client and the Company;

Payment Date as defined in clause 3.3;

Personnel means any employee of the Company or any person engaged by the Company pursuant to a contract for services;

Services means the services provided by the Company to the Client which are set out in the Order Form and further specified in the relevant Part or Parts of Schedule 2;

Third Party Offerings means services supplied by a third party which the Company sources and procures on behalf of the Client and which the Company invoices the Client for;

Third Party Supplier means any third party that provides services or goods to the Company;

Third Party Terms means the terms on which Third Party Supplier supplies the Goods or Services to the Company and/or the Client;

Virtual Machine means a discreet workload consisting of an operating system, application and data running on resources provided by the Company;

User means an individual employed by the Client who uses or has access to Client IT systems;

1.2 The headings in this document are inserted for convenience only and shall not affect its construction.

1.3 A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.

1.4 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.

1.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.

1.6 The Schedules form part of this document and shall have effect as if set out in full in the body of this document. Any reference to this agreement includes the Schedules.

1.7 References to any English legal or accounting term for any action, remedy, method of judicial proceeding, legal or accounting document, legal or accounting status, court, governmental or administrative authority or agency, accounting body, official or any legal or accounting concept, practice or principle or thing, in respect of any jurisdiction other than England, is deemed to include what is closest in that jurisdiction to the English legal or accounting term concerned.

1.8 Any undertaking by any of the parties not to do any act or thing will be deemed to include an undertaking not to allow that act or thing to be done to the extent it is within such party’s control.

2. Structure

2.1 This document sets out the terms and conditions further to which the Company agrees to make its IT services available to and, if applicable, supplies goods to the Client.

2.2 The Schedules to this document contain additional terms and conditions that are specific to the offering(s) being ordered by the Client, be these Services or Goods provided by the Company or Third Party Offerings.

2.3 The goods or services ordered by the Client from time to time shall be as detailed in an Order Form and shall be governed by the terms of this Agreement and the relevant Schedule(s) from those attached hereto.

2.4 Each Order Form shall create an individual contract between the parties comprising these terms and conditions, the provisions of the applicable Schedule(s) and the Order Form, such documents together the “Agreement”.

2.5 In the event of any conflict, the order of precedence shall be as follows, from most important to least: (1) the Order Form, (2) the clauses of these terms and conditions (3) the applicable Schedule.

3. Fees and Payment

3.1 All Charges payable by the Client shall be as stated in the Order Form.

3.2 All Charges are payable in GBP and are quoted exclusive of VAT and all other applicable taxes and government surcharges which the Client agrees to pay in addition at the rate and in the manner for the time being described by law.

3.3 All payments shall be made by the Client in full in cleared funds without deduction, discount, set-off or abatement within 30 (thirty) calendar days of receipt of an invoice (the “Payment Date”), unless otherwise specified on the Order Form.

3.4 If the Client has a genuine dispute about any amounts set out in an invoice, it shall pay all undisputed amounts in full and provide details to the Company of its dispute. The Parties shall work together in good faith to resolve any dispute promptly in accordance with clause 19.

3.5 If any non-disputed sum payable under an invoice is not paid on or before the Payment Date then, without prejudice to any other rights it may have, the Company will be entitled to: (a) charge the Client and the Client shall pay interest on the overdue amount at the rate of 4% per annum above Barclays Bank PLC’s base rate from time to time, such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment and the Client shall pay such interest together with the overdue amount; and/or (b) suspend provision of services immediately until it has received payment in full of all sums due; and/or (c) with a further 10 (ten) days’ notice, terminate the Agreement.

3.6 the Company may adjust the amount of the Charges during the term of this Agreement, and may notify the Client in writing of any proposed alteration to the Charges in relation to the Company Services by giving thirty (30) days’ notice prior to any such adjustment in the following circumstances:

3.6.1. in respect of any Charges paid annually, such charges shall be increased in line with inflation plus 2%. Such revised charges shall reflect the percentage change in the official United Kingdom Retail Price Index (all items) (or such index as replaces the same) plus 2% in the calendar year immediately preceding that anniversary;

3.6.2. to pass on to the Client any increase imposed by a Third Party Supplier;

3.6.3. as a result of the imposition by any relevant authority of any tax, impost, levy or charge including but not limited to any ‘green levy’ such as the carbon reduction commitment or the climate change levy and non-domestic rates on fibre-optic networks; or

3.6.4. if, following an audit by the Company of the Client’s use of the Services and any relating records at any time, in the Company’s reasonable opinion the Client is exceeding the agreed number of individuals and pieces of equipment subject to the Services then the Company may adjust the Charges to cover the additional use being made and to recoup any additional overuse that the Client has made prior to such audit.

3.7 the Company operates a fixed procedure for the management of overdue invoices as follows:

3.7.1. A member of the Company's credit control department will attempt to escalate to a senior member of the Client’s accounts payable team via email and/or telephone to secure immediate payment;

3.7.2. the Company’s credit control department will formally escalate to the Company’s management team, who will attempt to escalate to the Client’s SPOC or contract signatory via email and/or telephone to secure immediate payment;

3.7.3. The Company’s management team may authorise the suspension of all Services provided to the Client, where contractually permitted, subject to 21 days’ notice;

3.7.4. The Company's management team may authorise legal action, including: The issuance of a statutory demand; If the Client does not pay, dispute, or apply to set aside the statutory demand within 21 days, the Company may: Refer the debt to a regulated debt collection agency for recovery; Pursue a County Court Judgment (CCJ) to obtain a formal ruling on the debt; File a High Court winding-up petition to initiate compulsory liquidation proceedings.

4. Client’s Obligations

4.1 The Client will:

4.1.1. comply with its obligations as stated in the Agreement including, for the avoidance of doubt, the provisions of the applicable Schedule(s) and any other reasonable requests of the Company in a timely manner;

4.1.2. co-operate with the Company in all matters relating to the Agreement;

4.1.3. provide in a timely manner such access to the Client’s premises and data, and such office accommodation and other facilities, as is requested by the Company;

4.1.4. provide in a timely manner such information as the Company may request, and ensure that such information is accurate in all material respects; and

4.1.5. be responsible (at its own cost) for preparing the relevant premises for the supply of the Goods and/or Services.

4.2 Except where the Company is providing backup services as part of the Services, the Client shall be solely responsible for safeguarding its data by taking backup copies. The Client shall also be responsible for maintaining a disaster recovery process and any other prudent means as the Client believes appropriate. The Client is responsible for informing the Company in the event of any loss of data or disaster that invokes the Client’s disaster process and informing the Company of what may be required of it in such circumstances.

4.3 Where the Company is providing backup services as part of the Services, it shall do so on the terms set out in Part 3 of Schedule 2 and it will only backup the specific drive(s) or server(s) set out in the Order Form or otherwise agreed with the Client from time to time and shall only backup at the frequency set out in the Order Form or otherwise agreed with the Client from time to time. The Client acknowledges that the Company does not test the integrity or completeness of the Client’s data that forms part of the backup.

4.4 The Client is solely responsible for obtaining all required licenses or other consents reasonably required for the Company to perform its obligations under this Agreement. This includes procuring necessary rights from third parties which may be required from time to time. The Client shall provide full details of any requirements including licensing requirements and application system requirements that the Company may need to know in order to provide the Services.

4.5 The Client acknowledges that all Content hosted or stored on or passing through the Company’s infrastructure (including but not limited to the Company’s servers and systems) shall be the sole responsibility of the Client and any other person from whom such data originated. the Company will not monitor the Client’s data. However, the Client will, at the Company’s request, remove data where the Company reasonably suspects such data may be Inappropriate Content. The Client shall notify the Company promptly if it becomes aware of any allegation that any data may be Inappropriate Content. The Client shall indemnify and hold the Company harmless against all damages, losses, costs and expenses and other liabilities (including legal fees) incurred by, awarded against or agreed to be paid by the Company arising from any action or claim that the Client’s data constitutes Inappropriate Content.

4.6 The Client agrees that it shall not use any the Company Services or Third Party Offerings in a manner that is likely to:

4.6.1. contravene any applicable law or regulations including, without limitation, the Computer Misuse Act 1990;

4.6.2. compromise the security and/or integrity of any network or systems including, without limitation, introducing viruses or failing to employ appropriate security procedures;

4.6.3. involve the sending of unsolicited marketing or advertising material;

4.6.4. result in the transmission or storage of any Inappropriate Content; or

4.6.5. breach or cause the Company to breach any applicable legislation or Third Party Terms.

4.7 The Client shall at all times during and after the Term indemnify and hold the Company harmless against all damages, losses, costs and expenses and other liabilities (including legal fees) incurred by, awarded against or agreed to be paid by the Company arising from any breach of the Client’s obligations under clause 4.6.

4.8 The following Client Obligations shall apply to all Agreements for the Company Services:

4.8.1. The Client shall ensure that its staff and premises comply with all relevant legislation and regulations relating to health and safety matters and shall ensure that the Personnel are provided with a safe working environment while on the Client’s premises.

4.8.2. The Client shall ensure that it notifies the Company of any security, safety and other codes of practice or procedural policies that the Personnel are required to abide by.

4.8.3. The Client may oversee the methods used by the Personnel in accordance with any statutory obligations, and shall not unless reasonably necessary to do so, interfere, cause delay or stoppage to the Personnel in rendering the Services.

4.8.4. The Client acknowledges and accepts that this Agreement is non-exclusive and that, accordingly, the Company and the Personnel may be engaged by other parties simultaneously for the performance of services which are the same as or similar to the Services.

4.9 In the event that the Client fails to meet the Client Obligations the Client acknowledges that this may impact on the Company’s performance of the Agreement. If the Company’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Client or the Client’s agents, sub-contractors or employees, the Client shall in all circumstances be liable to pay to the Company on demand all reasonable costs, charges or losses sustained or incurred by it (including, without limitation, any direct, indirect or 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 Company confirming such costs, charges and losses to the Client in writing. the Company will use reasonable efforts to minimise this impact and to inform the Client accordingly.

5. The Company’s Obligations

5.1 The Company shall use reasonable care and skill with the diligence, prudence, foresight and judgement which would be expected from a suitably skilled, trained and experienced provider of services similar to the Services in its performance of this Agreement and the provision of Services and Goods hereunder.

5.2 The Company will use its reasonable endeavours to ensure that the Company Services are completed in accordance with any agreed timetables or other agreed targets using suitably skilled and experienced Personnel.

5.3 The Company acknowledges that from time to time the Client may notify it of policy changes that the Client is required to make under statutory requirements regarding, but not limited to, personal securities transactions, anti-money laundering, data protection procedures and outside business activities. In such circumstances the parties shall follow the change control procedure set out in clause 6.

5.4 The Company shall advise the Client as soon as an event has occurred or it reasonably anticipates that an event may occur which may have an impact on its ability to perform the Agreement effectively and in compliance with applicable laws and regulatory requirements, including information as to cause of the non-compliance.

5.5 The Company shall advise the Client as soon as practicable of any significant delays or anticipated delays in the performance of its obligations.

5.6 The Company shall permit the Client, its auditors or any Competent Authority, to visit any premises of the Company and provide access to the Client’s data related to the Agreement. the Company shall comply with all reasonable requests and instructions given to it by the Client in respect of any such inspection or request for access to the Client’s data. the Company shall comply with all lawful and reasonable directions communicated to it from time to time by the Client as required under the rules of any Competent Authority which relate specifically to the Agreement. the Company reserves the right to charge additional fees to the Client at the Company’s then current rates for the provision of assistance to any Competent Authority relating to the Client or the Client’s data.

5.7 The Client acknowledges that where equipment may be networked to or otherwise interfaced with computer systems and software which are outside the scope of this Agreement, the Company shall not be responsible for the operation or support of such other software and systems.

6. Change Control

6.1 The Company may need to make changes to the Agreement to comply with safety or other statutory requirements, or to make changes which do not materially affect the nature or quality of its deliverables. the Company will notify the Client in writing in advance of all material changes it is required to make and the Client will not unreasonably withhold or delay its consent to such changes.

6.2 Without prejudice to clause 6.1, if either Party wishes to change the scope or execution of the Services, it shall submit details of the requested change to the other Party in writing (Change Request).

6.3 If the Company originates a Change Request, it shall provide, with the Change Request, written details of the impact which the proposed change will have on:

6.3.1. the Services;

6.3.2. the existing Charges;

6.3.3. the existing timetable of the Services; and

6.3.4. any of the terms of the Agreement.

6.4 If the Client originates a Change Request, the Company shall provide to the Client, within fourteen (14) days of receiving the Change Request, a written estimate setting out:

6.4.1. the time required to implement the proposed change;

6.4.2. details of the impact which the proposed change will have on:

6.4.2.1. the Services;

6.4.2.2. the existing Charges;

6.4.2.3. the timetable of the Services; and

6.4.2.4. any of the terms of the Agreement.

6.5 Unless both Parties consent to a Change Request, there shall be no change to the Services or any other terms of the Agreement.

6.6 If both Parties consent to a Change Request, it shall be signed by the authorised representatives of both Parties, upon which the Change Request becomes a Change Order.

6.7 If either party is unwilling to accept a Change Request suggested by the other (or any term of any proposed Change Order), then the other Party may require the disagreement to be dealt with in accordance with the dispute resolution procedure in clause 19.

7. Warranties

7.1 Each Party warrants that it: (a) has the legal capacity and authority to enter into the Agreement; and (b) will comply with applicable laws including, but not limited to, the Data Protection Act 1998 and the Bribery Act 2010; and (c) has and will maintain in place industry- standard insurance policies in respect of its obligations under this Agreement, evidence of which will be made available to the other Party upon request.

7.2 The Company warrants that it will at all times ensure that all confidentiality and security requirements reasonably required by the Client are properly complied with by the Company’s Personnel.

7.3 The Client acknowledges and agrees that the Company cannot (and does not) guarantee, represent or warrant that the Services or the Third Party Offerings or any deliverables resulting from such services will be error-free or uninterrupted.

7.4 In the event that the Client reports a fault where none is then found, the Company reserves the right, which will only be exercised on reasonable grounds, to charge the Client for investigating the same at its then applicable standard rates.

7.5 The warranties and their remedies stated in the Agreement, including in the applicable Schedule(s), are the Client’s exclusive warranties and remedies and replace all other warranties or conditions, express or implied, including, but not limited to, the implied warranties or conditions of satisfactory quality, title and fitness for a particular purpose to the fullest extent permitted by law. the Company does not warrant that any the Company Services or Third Party Offerings will meet the Client’s requirements, that all faults will be fixed or that use will be uninterrupted or error-free.

8. Limitation and Exclusion of Liability

8.1 The Agreement and the Charges have been negotiated and agreed by the Company with the Client through their competent and authorised personnel in the context of information provided by the Client as to the Client’s particular needs and requirements. The Goods and Services have been prepared and costed accordingly and the Parties agree that the limitations and exclusions of liability in this clause 8 are reasonable in the circumstances.

8.2 Neither Party seeks to exclude or limit its liability under the Agreement in respect of death or personal injury caused by its negligence, wilful misconduct or fraud or, save as expressly stated otherwise, under any express indemnity stated in the Agreement.

8.3 Subject to Clause 8.2, neither Party will be liable directly or indirectly to the other for:

8.3.1. loss of or damage to business, revenue, profit or anticipated savings, loss of contracts, loss or liability under any other contract, loss of or damage to reputation or goodwill, or loss of, corruption to or damage to software, programs or data, or other similar losses or damages that may arise due to any interruption to business (regardless of how such liability might arise); or

8.3.2. any representation (unless made fraudulently or with wilful misconduct), or any implied warranty, condition or other term, or any duty at common law, other than under the express terms of the Agreement; or

8.3.3. for any indirect, consequential, incidental or special loss or damage whatsoever and howsoever arising out of or in connection with the Agreement.

8.4 Subject to clause 8.2 and the exclusions in clause 8.3, in all other instances the total liability in aggregate of the Company to the Client for all claims arising in respect of, under or in connection with any part of this Agreement shall not exceed the aggregate amount of the Charges paid or payable under the Agreement in the 12 months immediately preceding the date of the breach under which the relevant claim first arises.

8.5 Subject to clause 8.2, the Company shall have no liability to the Client for any delay, loss, damage, costs, expenses or other claims for compensation arising directly or indirectly from:

8.5.1. any information or instructions supplied by the Client or third party which are materially incomplete, incorrect, inaccurate, illegible, out of sequence or in the wrong form, or arising from their late arrival or non-arrival, or any other fault of the Client or third party; or

8.5.2. the Client making use of the Services or Third Party Offerings for any purpose other than the purpose expressly stated and anticipated in the Agreement; or

8.5.3. any matter within or connected to the network other than an issue arising or occurring as a direct result of gross negligence by the Company.

8.6 The Parties acknowledge that the provisions of Clause 8 may be subject to review in the event that the Agreement is varied but only for the purpose of achieving a proportionate adjustment to reflect any alteration to the balance of risk arising out of that variation.

8.7 Nothing in this Agreement shall limit or exclude the Company's liability for:
(a) death or personal injury caused by its negligence;
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982;
(d) any matter in respect of which it would be unlawful for the Company to exclude or restrict liability.

8.8 The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from this Agreement.

8.9 The parties acknowledge that the limitations of liability set out in this clause 8 are reasonable in the context of the commercial relationship between the parties and have been reviewed for compliance with the Unfair Contract Terms Act 1977.

9. Data Protection

9.1 Both parties will comply with all applicable requirements of the UK Data Protection Legislation, including the Data Protection Act 2018, UK GDPR and any applicable regulations or guidance issued by the Information Commissioner's Office. This clause 9.1 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under the Data Protection Legislation.

10. Intellectual Property

10.1 Unless agreed otherwise in writing between the parties:

10.1.1. The Client shall retain ownership of all Intellectual Property Rights, in the documents or other material and data or other information provided by the Client to the Company pursuant to this Agreement. For the avoidance of doubt, the Client shall not be deemed to have granted the Company any licence to use the documents or other material and data or other information other than for the purposes of carrying out its obligations pursuant to this Agreement and providing the Services.

10.1.2. The Company (or its licensors) shall retain ownership of all Intellectual Property Rights in all documents or other material and data or other information and devices or processes provided or created by the Company in the provision of the Services save that the Company shall be deemed to have granted the Client a non-exclusive and non-assignable licence to make use of any such documents or other material and data or other information and devices or processes solely to make reasonable use thereof in accordance with this Agreement. Such licence(s) shall terminate on termination of this Agreement or any relevant part hereof.

10.1.3. Where appropriate, the Company shall be deemed to have asserted its moral rights over any documents and communications or other material provided or created by the Company in the provision of the Services.

10.2 Subject to clause 10.3 and the liability cap in clause 8.4, the Company shall indemnify Client from any third party claim alleging that the the Company Services performed under this Agreement infringe any third party’s UK intellectual property rights (a “Claim”) provided that:

10.2.1. the Company is given prompt notice of any such claim; and

10.2.2. the Company has the right to control and direct the defence or settlement of such claim; and

10.2.3. the Client shall fully co-operate with the Company in such defence; and

10.2.4. the Client shall not make any admission in relation to the claim.

10.3 the Company shall have no liability for Services performed in accordance with Client’s specific instructions nor for services which are Third Party Offerings.

10.4 In the event of a Claim being made or suspected, the Company shall have the right at its sole option and expense to either:

10.4.1. modify or re-perform the the Company Services so that they are non-infringing; or

10.4.2. terminate the Client’s right to use the relevant the Company Services and refund any pre-paid fees in respect of the terminated portion. This clause states the Company’s sole obligations and Client’s exclusive remedies with respect to intellectual property right infringement claims.

11. Confidential Information

11.1 Any non-disclosure or confidentiality agreement currently in force between the parties is hereby terminated, without prejudice to the accrued rights and liabilities of the Parties thereunder up to and including such date of termination.

11.2 “Confidential Information” shall include all technology and business information of either Party, including (but not limited to): processes, methodologies, data, knowledge, know-how, computer software, source code, object code and documentation; information relating to such Party's planned or existing computer systems and systems architecture, methods of processing and operational methods; client lists, sales, profits, organisational restructuring, new business initiatives, business strategies and financial information; confidential information of third parties with which a Party conducts business; and other information which is marked "Confidential" and/or "Proprietary" by the disclosing Party and any information which the recipient Party has been informed is confidential or which it might reasonably expect the other Party would regard as confidential.

11.3 Confidential Information shall not include information that:

11.3.1. is or becomes generally known to the public not as a result of a disclosure by the receiving Party,

11.3.2. is rightfully in the possession of the receiving Party prior to disclosure by the disclosing Party,

11.3.3. is received by the receiving Party in good faith and without restriction from a third party, not under a confidentiality obligation to the disclosing Party and having the right to make such disclosure,

11.3.4. is independently developed by or for the receiving Party without use or reference to the Confidential Information, or

11.3.5. is identified in writing by the disclosing Party as no longer being Confidential Information.

11.4 Both Parties acknowledge that they may be provided or come into contact with information that is the Confidential Information of the other Party. Except to the extent set out in this clause or where disclosure is expressly permitted elsewhere in this Agreement, each Party shall:

11.4.1. maintain the other Party's Confidential Information in confidence, using such degree of care as is appropriate to avoid unauthorised use or disclosure;

11.4.2. not disclose any Confidential Information of the other Party, except with the other Party's prior written consent or as otherwise provided in this Clause 11;

11.4.3. not make use of any Confidential Information of the other Party for its own purposes (other than as contemplated by this Agreement) or the benefit of any third party; and

11.4.4. upon completion of the Agreement, or at any time the disclosing Party may so request, the receiving Party will promptly deliver to the disclosing Party, or, at the disclosing Party's option will destroy, all memoranda, notes, records, reports, media and other documents and materials (and all copies thereof) regarding or including any Confidential Information which the receiving Party may possess or have under its control.

11.5 Confidential Information is and shall remain the sole property of the disclosing Party. The receiving Party shall gain no interest or rights in or to Confidential Information by virtue of its being disclosed to the receiving Party for the limited purposes contemplated hereunder.

11.6 The receiving Party shall be permitted to disclose the Confidential Information of the disclosing Party only as follows:

11.6.1. to officers, directors, partners, employees, subcontractors, consultants and agents or the receiving Party ("Relevant Persons") having a need to know such information in connection with the performance of the Agreement. The Parties shall instruct all such Relevant Persons as to their obligations under this Agreement and that they shall be required to comply with terms and conditions hereof. Each Party shall be responsible for compliance by its Relevant Persons with the terms of this Agreement; and

11.6.2. if disclosure is required by law (and to the extent permissible by law) or by any Competent Authority, to the extent possible the receiving Party shall notify the disclosing Party in writing in advance of such disclosure, and provide the disclosing Party with copies of any related information so that it may take appropriate action to protect the Confidential Information.

11.7 The receiving Party acknowledges that the disclosure of Confidential Information may cause irreparable injury to the disclosing Party. The disclosing Party may, therefore, be entitled to injunctive relief upon a disclosure or threatened disclosure of any Confidential Information. Without limitation of the foregoing, the receiving Party shall advise the disclosing Party immediately in the event that it learns or has reason to believe that any of its Relevant Persons who has had access to Confidential Information has violated or intends to violate the terms of this Agreement, and will at the disclosing Party’s expense reasonably cooperate with the disclosing Party in regaining possession of the Confidential Information and seeking injunctive relief. This provision shall not in any way limit such other remedies as may be available to either Party at law or in equity.

11.8 The confidentiality provisions set out in this clause 11 shall survive termination of this Agreement.

12. Assignment and Subcontracting

12.1 Save that the Company may transfer, assign or novate the whole or any part of its rights and obligations hereunder in the event of a transfer of a material part of its business, neither Party may transfer, novate, assign or sub-license this Agreement in whole or any of its rights or obligations hereunder outside of its group of companies without the prior written consent of the other Party, which consent will not be unreasonably withheld.

12.2 The Company may sub contract the provision of the Services or the performance of this Agreement pursuant to a contract for services without the Client’s prior written consent.

12.3 The Company will be responsible for all acts and omissions of any subcontractor as if they were its own.

13. Non-solicitation of Staff

13.1 The Client shall not, without the prior written consent of the Company, at any time from the execution of the Agreement to the expiry of 6 months after the last date of supply of services thereunder, solicit or entice away from the Company or employ or attempt to employ any person who is, or has been, engaged as an employee, consultant or subcontractor of the Company in the performance of the Agreement.

13.2 Any consent given by the Company in accordance with clause 13.1 shall be subject to the Client paying to the Company a sum equivalent to 50% of the then current annual remuneration of the Company employee, consultant or subcontractor or, if higher, 50% of the annual remuneration to be paid by the Client to that employee, consultant or subcontractor.

14. Duration

14.1 This Agreement shall become effective as of the date specified at the beginning of this Agreement or if none, the date of its execution (the “Effective Date”).

14.2 The “Initial Term” of all the Services specified in the Order Form shall be the period of twelve (12) months from the “Service Commencement Date” (being the earlier of (a) where a Service is subject to acceptance tests the acceptance date otherwise (b) the date that the Client is notified by the Company in writing that the Service is ready for use or (c) the date that the Client actually starts using the Service) unless specified separately in the Applicable Order Form.

14.3 Subject to earlier termination of this Agreement in accordance with its terms, the provision of any services shall continue for the Initial Term as defined in the applicable Order Form. The Parties acknowledge that within a service, different elements may have different Initial Terms (and also renewal terms) and that the expiry of the Initial Term of one element will not affect the continuation of the Initial Term of other elements of service.

14.4 Unless otherwise stated in the applicable Order Form or stipulated by a third party supplier, upon expiry of the Initial Term, the service shall continue thereafter for successive twelve (12) month periods until terminated by either Party giving to the other not less than ninety (90) days’ notice to be effective on the expiration of the Initial Term or at the end of any twelve (12) month renewal period. The parties acknowledge that certain Third Party Offerings may renew for different durations.

14.5 Without prejudice to clause 3.6, after the expiry of the Initial Term, the Company shall be entitled to revise all amounts payable for the Services to reflect its then current standard rates and any revised fees advised by the Company’s suppliers, by giving the Client not less than thirty (30) days prior written notice.

14.6 Where the scope of the services is extended by the addition of additional services not originally selected by Client, the term of the Services shall not be extended unless expressly provided for in a relevant Order Form, and any services that are added to the Services shall be provided on the terms of this Agreement and may only be terminated with all the other then current Services.

15. Suspension

15.1 the Company reserves the right to suspend performance of all or any of its obligations under the Agreement, giving as much notice as is reasonably practical in the circumstances, if:

15.1.1. the Client is in breach of any of its obligations under the Agreement;

15.1.2. the Client knowingly does or allows to be done anything which may reasonably jeopardise the service or any network to which it is connected;

15.1.3. the Company is obliged to comply with an order, instruction or request by any competent authority or supplier; or

15.1.4. it is necessary to do so in order to protect the Client’s or other client’s systems from damage or harm.

15.2 Suspension shall not affect the liability of the Client to pay any Charges due hereunder.

16. Termination

16.1 Either Party may terminate this Agreement immediately on notice:

16.1.1. if the other Party is in breach of a material term of this Agreement and fails to remedy such breach (if capable of remedy and a breach shall be capable of remedy if it can be remedied in all material respects save for time for performance) within 30 calendar days’ of receiving written notice from the non-defaulting Party to rectify such breach; and/or

16.1.2. if the other Party is unable to pay its debts or is declared insolvent or an order or an application is made or a resolution passed for its administration, winding-up or dissolution (otherwise than for the purposes of a solvent amalgamation or reconstruction) or an administrative or other receiver, manager, liquidator, administrator, trustee or similar officer is appointed over all or any of its assets or an application or a filing for a moratorium is made in respect of that other Party under Schedule A1 of the Insolvency Act 1986 or it enters into or proposes any composition or arrangement with its creditors generally or anything analogous to the foregoing occurs in any applicable jurisdiction.

16.2 the Company may terminate this Agreement or a relevant part:

16.2.1. the Client fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 14 days after being notified to make such payment;

16.2.2. Where expressly so stated in the Agreement;

16.2.3. by giving the Client 30 calendar days’ prior written notice if the Client fails to afford the Company reasonable access to the premises, equipment, personnel or other information or other reasonable act required of the Client by the Company in order to perform its obligations;

16.2.4. With as much notice as it is able to provide in the event that a relevant Third Party Supplier terminates its agreement with the Company and no suitable replacement can be found on reasonable commercial terms.

16.3 Where this Agreement is terminated or otherwise brought to an end before the expiry of the Initial Term or any committed renewal term without the requisite notice period being given and paid for, including where provision of services has not yet commenced, the Client shall be liable to pay:

16.3.1. any and all Charges payable to the Company for work completed, committed or currently underway before the effective date of termination; and

16.3.2. all amounts that are payable in relation to any Third Party Offerings, including but not limited to connectivity and software licences, termination charges equal to the charges that would have been payable until the end of the Initial Term or committed renewal term.

16.4 Termination shall discharge the Company from liability for further performance of the Agreement and shall entitle the Company to enter the Client’s premises and recover any equipment and materials which are the Company’s property and the Client hereby irrevocably licences the Company, its employees and agents to enter its premises for that purpose.

16.5 Subject to clause 16.4, termination shall not affect the accrued rights or liabilities of either party. Any provisions of the Agreement which by implication would survive termination shall so survive.

16.6 On termination for whatever reason, each party shall return (if requested) and make no further use of any equipment, property, materials and other items, including any copies thereof, belonging to the other party.

16.7 For the purposes of clause 16.1.1, a material breach means a breach (including an anticipatory breach) that is serious in the nature of its consequences for the innocent party. This includes: 16.7.1 repeated breaches of this Agreement which taken together amount to a material breach;
16.7.2 any breach which adversely affects the Company's ability to perform its obligations under this Agreement;
16.7.3 any breach of payment obligations under clause 3. 16.8 Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:
16.8.1 a Force Majeure Event prevents the other party from performing its obligations under this Agreement for more than 90 consecutive days;
16.8.2 the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business.

17. Anti-Bribery

17.1 Each Party shall:

17.1.1. comply with all applicable laws, regulations, mandatory codes and sanctions relating to anti-bribery and anti-corruption including the Bribery Act 2010 (“Relevant Requirements”);

17.1.2. have and shall maintain in place throughout the term of this Agreement its own policies and procedures, including adequate procedures under the Bribery Act 2010, to ensure compliance with the Relevant Requirements, and will enforce them where appropriate; and

17.1.3. promptly report to the other Party any request or demand for any undue financial or other advantage of any kind received by it in connection with the performance of this Agreement.

17.2 Any breach of this Clause 17 by a Party shall be deemed a material breach.

18. General

18.1 Force Majeure: Neither Party shall be liable or be deemed to be in breach of the Agreement by reason of any delay in performing, or any failure to perform, any of its obligations (other than the payment of fees obligation) if the delay or failure was due to any cause beyond its reasonable control. The time for performance of the affected obligation shall be extended by such period as is reasonable and agreed between the Parties.

18.2 Entire Agreement: The terms of the Agreement and any related Order Forms represent the entire agreement between the parties and supersede any previous representations or agreements whether made orally or recorded in writing but not any fraudulent misrepresentations. The terms of this Agreement may only be varied when the variation is recorded in writing and agreed by both Parties

18.3 Notices: Any notice given to a Party under or in connection with this agreement shall be in writing and shall be:

18.3.1 delivered by hand or by pre-paid first-class post or other next Business Day delivery service at its registered office (if a company) or its principal place of business (in any other case); or

18.3.2 by email specified by each Party from time to time.

18.3.3 Any notice shall be deemed to have been received:

18.3.3.1. if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;

18.3.3.2. if sent by pre-paid first-class post or other next Business Day delivery services, at 9.00am on the second Business Day after posting or at the time recorded by the delivery service.

18.4 This clause does not apply to the service of any proceedings or any documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

18.5 Relationship: the Company and the Client agree that the Agreement is a contract for services in respect of specialist services to be provided by the Company to the Client. For the avoidance of doubt (a) nothing in this Agreement shall constitute, or be deemed to constitute, a partnership or joint venture between the Parties nor, except as expressly provided, shall it constitute, or be deemed to constitute, a Party the agent or representative of the other Party for any purpose and the Company shall not hold itself out as such; and (b) nothing in this Agreement shall constitute, or be deemed to constitute, an employment relationship between the Parties nor shall any third party (including any of the Company’s Personnel) be deemed the employee, agent or representative of the Client for any purpose.

18.6 Reasonableness: Both Parties agree that the terms of this Agreement are fair and reasonable in all the circumstances and that they have been advised by suitably skilled advisors.

18.7 Invalidity: If any provision of this Agreement is judged to be invalid or unenforceable, the remaining provisions of this Agreement will continue in full force and effect unless the substantive purpose of this Agreement would be frustrated as a consequence in which case either Party may terminate this Agreement forthwith on giving written notice to the other. For any invalid or unenforceable provision the Parties shall attempt to substitute a valid and enforceable provision that achieves the intended economic, legal and commercial objectives of the invalid and unenforceable provision.

18.8 Waiver: A waiver by either Party to enforce its respective rights under this Agreement for breach or default by the other Party shall not be deemed a waiver of any later breach. No forbearance or delay by either Party in enforcing its respective rights will prejudice or restrict the rights of that Party.

18.9 Third Parties: Except where expressly provided to the contrary, this Agreement is not intended to be for the benefit of, and shall not be enforceable by any person who is not specifically named at the date of this Agreement as a party to it. The Contracts (Rights of Third Parties) Act 1999 shall not apply to this Agreement.

18.10 Disputes: If any dispute arises out of or in connection with the Agreement, the Parties shall use reasonable endeavours to resolve the dispute in good faith. At any time, a Party shall have the right to escalate the dispute to a more senior level. For the Company, the levels of escalation would generally be the Chief Technical Officer, then the Chief Operating Officer and ultimately the Chief Executive Officer.

18.11 Law and Courts: It is agreed that this Agreement will be governed and construed according to the laws of England and the parties submit to the exclusive jurisdiction of the English Courts.

19. Dispute Resolution Process

19.1 If any dispute or difference arises between the Parties concerning the construction or performance of this Agreement or the rights and liabilities of the Parties, the Parties will actively, openly and in good faith discuss that dispute or difference with a view to resolving it by mutual agreement. Neither Party shall commence any litigation in relation to this Agreement unless it has provided an opportunity for the representatives of both Parties to meet for the purpose of endeavouring to resolve the dispute or difference by mutual agreement.

19.2 Mediation: Any dispute or difference arising under this Agreement which cannot be settled by active, open and good faith discussion between the Parties will be submitted to mediation utilising the services of the Centre for Effective Dispute Resolution (CEDR) in London before either Party commences any litigation. Either Party shall be entitled to initiate mediation by giving written notice to the other. The costs related to the mediation services shall be shared equally by the Parties.

19.3 Continuing Performance: Both Parties will continue to perform their obligations under this Agreement as far as possible as if no dispute or difference had arisen pending the final settlement of any matter referred to mediation.

19.4 Injunctive Relief: Nothing in this clause will preclude either Party from taking immediate steps to seek urgent injunctive relief before an English court.

19.5 Notwithstanding any of the provisions of this Clause 19, the Parties shall not be obliged to refer to any form of dispute resolution procedure any breach or alleged breach of this Agreement where the breach or alleged breach relates solely to non-payment of undisputed Charges.

SCHEDULE 1: GOODS AND THIRD PARTY OFFERINGS

1. General Terms

1.1 The Client agrees to abide by any terms and conditions that the Company is required, or could be reasonably expected, to pass onto it by its suppliers in relation to the Goods and/or Third Party Offerings. Such Third Party Terms may include acceptable use policies, warranty conditions, end user licence agreements, renewal and termination provisions and similar. The Client understands and accepts that the Company is contractually obliged to pass applicable Third Party Terms to the Client and the Company will make these available to the Client on request. Accordingly, the Client agrees to indemnify and hold the Company harmless against all damages, losses, costs and expenses and other liabilities (including legal fees) incurred by, awarded against or agreed to be paid by the Company arising from any breach by the Client of the Third Party Terms.

1.2 The Client shall be entitled to the benefit of any rights of return, warranty or guarantee:

1.2.1. as the Company is able to pass on from the Third Party Supplier of the Goods or Third Party Offerings;

1.2.2. as may be offered to the Client directly by the relevant Third Party Supplier; or

1.2.3. as may be expressly agreed between the parties.

1.3 The Client agrees that the choice and use of any Goods and Third Party Offering is in accordance with any applicable Third Party Terms and at the Clients sole risk.

2. Goods

2.1 the Company will supply the Goods specified in this Schedule 1 or set out in the Order Form. The Goods will conform to the specification given to them by their manufacturer.

2.2 the Company reserves the right to substitute any Goods specified in this Schedule 1 or set out in the Order Form with substantially equivalent Goods in the event that the manufacturer ceases to produce or support the model referred to or if it is required by any applicable statutory or regulatory requirements.

2.3 the Company shall deliver the Goods to the location set out in the Order Form or such other location as the Parties may agree “Delivery Location”.

2.4 Any dates quoted for delivery of the Goods are approximate only, and the time of delivery is not of the essence.

2.5 Risk of loss or damage in the Goods shall pass to the Client on delivery to the agreed address or, if the Client fails to take delivery of the hardware, the time when the Company has tendered delivery of the hardware. Accordingly, the Client shall be responsible for insuring the hardware against all normal risks with effect from the time that risk passes.

2.6 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of this Agreement, the legal and beneficial ownership of the hardware (excluding anything in which the intellectual property rights are reserved) shall not pass to the Client until the Company has received payment in full of the fees then due.

2.7 Until such time as the legal and beneficial ownership passes to the Client:

2.7.1. the Client shall hold the Goods as the Company's fiduciary agent and bailee

2.7.2. store the Goods properly separately from all other goods held by the Client so that they remain in good condition and are readily identifiable as the Company’s property

2.7.3. the Client shall insure the Goods;

2.7.4. not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;

2.7.5. maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on the Company’s behalf from the date of delivery;

2.7.6. notify the Company immediately if it becomes subject to any of the events listed in clause 16.1.2;

2.7.7. give the Company such information relating to the Goods as the Company may require from time to time; and

2.7.8. shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which is not its property, but if the Client does so all monies owing by the Client to the Company (or the relevant lessor) shall (without prejudice to any other right or remedy of the Company (or the relevant lessor) forthwith become due and payable.

2.8 If before title to the Goods passes to the Client the Client becomes subject to any of the events listed in clause 16.1.2, then, without limiting any other right or remedy the Company may at any time:

2.8.1. require the Client to deliver up all Goods in its possession which have not been resold, or irrevocably incorporated into another product; and

2.8.2. if the Client fails to do so promptly, enter any premises of the Client or of any third party where the Goods are stored in order to recover them.

2.9 the Company warrants that on delivery the Goods shall:

2.9.1. conform in all material respects with their description and any specification given for them by the manufacturer; and

2.9.2. be free from material defects in material and workmanship.

2.10 Subject to paragraph 2.11, if:

2.10.1. the Client gives notice in writing within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in paragraph 2.9;

2.10.2. the Company is given a reasonable opportunity of examining such Goods; and

2.10.3. the Client (if asked to do so by the Company) returns such Goods to the Company’s place of business at the Client’s cost, the Company shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.

2.11 the Company shall not be liable for the Goods’ failure to comply with the warranty in paragraph 2.9 if:

2.11.1. the Client makes any further use of such Goods after giving a notice in accordance with paragraph 2.10;

2.11.2. the defect arises because the Client failed to followed the Company’s or the manufacturer’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice;

2.11.3. the defect arises as a result of the Company following any drawing, design or specification supplied by the Client;

2.11.4. the Client alters or repairs such Goods without the written consent of the Company;

2.11.5. the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions;

2.11.6. the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory standards.

2.12 Except as provided in paragraph 2.10, the Company shall have no liability to the Client in respect of the Goods’ failure to comply with the warranty set out in paragraph 2.9.

2.13 The terms of these Conditions shall apply to any repaired or replacement Goods supplied by the Company under paragraph 2.10.

3. Hardware

3.1 Orders

3.1.1. Where the Parties execute an Order Form for the supply of hardware, the Company will obtain such hardware for the Client for the Charges stated in the Order Form.

3.1.2. The Client shall be responsible for ensuring the accuracy of the terms of any Order Form (including any applicable specification), and for giving the Company any necessary information within a sufficient time to enable the Company to perform the Agreement in accordance with its terms.

3.1.3. The quantity, quality and description of and any specification for the hardware shall be as stated in the Order Form.

3.1.4. No Order Form which has been accepted by the Company may be cancelled by the Client except with the agreement in writing of the Company and on terms that the Client shall indemnify the Company in full against all loss, direct and consequential (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses (including interest, legal and other professional fees) incurred by the Company as a result of cancellation and which the Company is unable to avoid, using reasonable efforts to do so.

3.1.5. Any reasonably obvious 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 Company shall be subject to correction without any liability on the part of the Company.

3.1.6. the Company may make any changes in the specification of hardware which do not materially affect their quality or performance.

3.1.7. the Company may cancel any Order Form without liability where any hardware has ceased to be available on reasonable commercial terms.

3.1.8. Any advice or recommendation given by the Company to the Client as to the storage, application or use of hardware or any representation concerning hardware which is not confirmed in writing by the Company is followed or acted upon entirely at the Client's own risk, and accordingly the Company shall not be liable for any such advice or recommendation which is not so confirmed.

3.2 Deliveries

3.2.1. the Company will use reasonable efforts to deliver hardware to the agreed address on the agreed date. Any dates quoted for delivery of hardware are approximate only. The Client agrees to accept early delivery and the Company shall not be liable for any delay in delivery of the hardware however caused. Time for delivery shall not be of the essence of the Agreement.

3.2.2. Fees quoted do not include the cost of transportation of the hardware or any other delivery costs, which shall be charged at the Company's discretion and paid by the Client.

3.2.3. Where the hardware is to be delivered in instalments, each delivery shall constitute a separate contract and failure by the Company to deliver any one or more of the instalments in accordance with this Agreement or any claim by the Client in respect of any one or more instalments shall not affect the remainder of the Agreement nor entitle the Client to treat the Agreement as a whole as repudiated.

3.2.4. The Client must inspect hardware on delivery and shall within two (2) working days of delivery provide to the Company in writing full particulars of any failure of the hardware to meet the Agreement. Time shall be of the essence for this obligation to enable the Company to raise issues with its suppliers within the time limits allowed by them.

3.2.5. If the Client fails to take delivery of the hardware or fails to give the Company adequate delivery instructions then without prejudice to any other right or remedy available to the Company, the Company may (a) store the goods until actual delivery and charge the Client for the reasonable costs (including insurance) of storage; or (b) sell the hardware at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Client for the excess over the fees under the Agreement or charge the Client for any shortfall below the fees.

3.3.1. the Company offers management services to the Client to assist the Client in obtaining remedy of any faulty or defective hardware carrying a warranty, guarantee or care support package but the Company has no liability for any direct or indirect loss or damage suffered by the Client as a result of faulty or defective hardware. the Company is not responsible in any way for hardware performance, features or faults.

4. Software

4.1 No title or ownership of software supplied or made available by the Company to the Client is transferred to the Client under any circumstances. Software is not sold; it is licensed in perpetuity or for the limited duration stated in the Order Form.

4.2 The Client acknowledges that the proprietary rights in any software supplied by the Company, including, but not limited to, any title or ownership rights, patent rights, copyrights and trade secret rights, shall at all times and for all purposes vest and remain vested in the third-party owner of such software. It is the Client’s sole responsibility at its sole cost to comply with any terms and conditions of any licence attaching to the software supplied or made available by the Company, including if so required, the execution and return of a third party software licence. Client’s failure to comply with such terms could result in the Client being refused a software license or having it revoked by the license owner, notwithstanding other remedies included in the relevant license or by law.

4.3 Client agrees that any liability regarding breach of intellectual property rights in software shall be subject solely to the terms offered by such third party and that the Company shall have no liability to the Client for third party intellectual property right infringement claims in respect thereof.

5. Third Party Offerings

5.1 For Third Party Offerings, save as may be stated in the applicable Schedule(s), these are provided or made available to the Client ‘as is’. the Company does not give any warranty, guarantee or other term in relation to the Goods or the Third Party Offerings as to the quality, fitness for purpose or otherwise and all implied warranties and conditions are hereby excluded to the fullest extent permitted by law.

SCHEDULE 2: SERVICES GENERAL TERMS RELATING TO THE PROVISION OF SERVICES

1. Management, reports and inspection

1.1 the Company shall keep the Client adequately informed as to the progress and status of the Services.

1.2 The Parties shall arrange and attend progress and review meetings at regular intervals at locations as agreed by the Parties from time to time to review and discuss the status of the Services, developments affecting the Client and agree on any actions and seek to resolve any issues arising in good faith.

1.3 The Parties shall each appoint a Single Point Of Contact (“SPOC”) to assume overall responsibility for their respective requirements under the Agreement. The SPOCs shall be sufficiently senior within the organisation of the appointing party, and granted sufficient authority by that Party to act on behalf of their respective Party, to ensure full cooperation in relation to all matters set out in, or in connection with, this Agreement. All invoices, communications, notices and reports relating to this Agreement sent or provided by either Party shall be marked for the attention of that Party’s SPOC. Where possible at least one (1) month’s written notice must be provided by either Party of its intention to replace a SPOC.

1.4 the Company shall, upon the written request of the Client and at the client’s expense permit the Client to visit any premises where any Services are being performed and meet with Personnel currently engaged in the Services, allow access to data related to the Services, and comply with all reasonable requests by the Client to enable the Client to verify that the Company is in compliance with its obligations under this Agreement.

1.5 The Client acknowledges and accepts that the Company may rotate its Personnel when and where required with other engaged Parties. the Company has the right to supply substitute Personnel of equivalent expertise to work in place of the Company’s original Personnel. the Company acknowledges that the Client has the right to refuse to accept the substitute Personnel if, in the reasonable view of the Client, the substitute Personnel is not appropriate or acceptable to the Client. Where substitution of Personnel occurs, the other terms and conditions of this Agreement, and in particular (but not limited to) the Charges and the timetable of the Services, will remain unchanged, unless otherwise agreed by both Parties in writing.

2. Warranties in relation to the Services:

2.1.1. the Company warrants to the Client that the Services will be provided using reasonable care and skill with the diligence, prudence, foresight and judgement which would be expected from a suitably skilled, trained and experienced provider of services similar to the Services;

2.1.2. the Company warrants that it has used all reasonable measures to verify and keep up to date information regarding the Personnel’s’ expertise, experience and qualifications and that the Personnel are competent and suitable to provide the Services; and

2.1.3. additional warranties, caveats and limitations may be stated in the applicable Parts of this Schedule 2.

2.2 In the event of any breach of the warranties provided in paragraph 2, the Client shall report such breach to the Company promptly, and in any event within 30 days of the breach. In such event the Company’s sole liability and Client’s exclusive remedy shall be the Company, at its sole option and expense, to either re-perform the Services within a reasonable time to cure the breach or to refund to the Client fees paid in respect of the breaching Services.

PART 1: MANAGED SERVICES

1. Managed Service Description

1.1 the Company Managed Services are an integrated set of services provided by the Company and a selected range of services provided by Third Party Providers “Third Party Offerings”.

1.2 For the Third Party Offerings provided to the Client by the Company, the Company will:

1.2.1. procure the service on behalf of the Client;

1.2.2. manage the Third Party Offerings and provide a single point of contact for the Client in relation to the Third Party Offerings, liaising with the Third Party Providers on behalf of the client;

1.2.3. represent the Client, the Client’s interests and the Client’s requirement to the Third Party Provider;

1.2.4. manage any incidents which are related to Third Party Offerings by means of recording and monitoring the incident with the Third Party Security Services.

1.2.5. manage any incidents which are related to Third Party Offerings provided by the Company by means of recording and monitoring the incident with the Third Party Suppliers and subsequently liaising with them on behalf of the Client;

1.3 Third Party Offerings will be provided subject to any standard terms and conditions of the Third Party Provider where applicable. Any applicable terms in addition to General Terms will be made available to the Client by the Company.

1.4 the Company will manage and seek resolution of the Client’s IT problems including liaising with relevant third party suppliers and manufacturers on the Client’s behalf. This includes advising the Client of third party supplier’s contract renewals, liaising with third parties with regards to maintenance and service issues and providing professional advice in relation Third Party Offerings.

1.5 the Company will provide incident and problem management services, aligned with the Information Technology Infrastructure Library (ITIL) service management framework, which will:

1.5.1. provide and maintain a service desk management system to receive incidents, services requests and change requests from the Client with a defined means of submission and manage any events produced from the monitoring systems;

1.5.2. record all incidents and service requests into the incident management system with unique identification, details of persons reporting, date and time of occurrence, priority and current status;

1.5.3. classify all incidents and problems according to both priority, using the response guidelines below, and category dependent on the nature of the incident;

1.5.4. produce major incident reports for all priority 1 incidents;

1.5.5. provide root cause analysis and ensure root causes and resolutions to incidents are documented and available to the Client;

1.5.6. receive IT service related incidents from the Client’s Third Party Suppliers, as agreed between the Company and the Client, to the service desk;

1.5.7. provide regular Service Level / performance reports along with analysis of reports and historical trends.

1.6 the Company offers a change management system, reporting suite and review meetings to enable the Client to make informed decisions and review open incidents, events, service and change requests. As part of the change management system, the Company will:

1.6.1. plan, schedule, manage and implement change requests relating to the Services provided by the Company;

1.6.2. provide change management for operational changes and Client change requests;

1.6.3. manage planned and emergency maintenance relating to the Services provided by the Company and the Third Party Offerings provided by the Company.

1.7 All work done in relation to Support Services are subject to a minimum of 15-minute time units.

1.8 The Manged Service is composed of three core components which together provide a comprehensive IT monitoring and incident response solution:

1.8.1. Server/workstation and Network device remote monitoring;

1.8.2. Professional Automation Software to provide centralised management and ;

1.8.3. Centralized structured documentation systems.

1.9 The Managed Service will provide comprehensive management and monitoring services which will:

1.9.1. provide and maintain a real-time, automated monitoring toolset to ensure that critical IT infrastructure services and systems are monitored for availability, health, issues and errors according to specific thresholds and systems checks,

1.9.2. raise alerts to incident management systems, the Company, Client or Third Party Suppliers as appropriate,

1.9.3. collect and maintain server and network infrastructure information to support asset management, capacity planning, trend analysis and incident diagnostics.

1.10 The Managed Service will also provide an asset management service.

1.10.1. the Company will provide the Client with an automated, network discovery-based, list of all the Assets which are in use within the Client’s organisation, and which are used by the Company in the delivery of the Services.

1.10.2. the Company will provide life-cycle management which will ensure the operating system, software and firmware versions and applicable warranties of Assets, are recorded. the Company will notify and discuss options with the Client of Asset and maintenance expiry dates, providing the Client a reasonable time period in which to address any changes.

2. Response Guidelines

2.1 the Company will use best endeavours to provide Support Services in accordance with the following targets which commence on classification of the priority of the incident, however times cannot be guaranteed:

2.2 the Company will apply the following general principles when classifying the priority of an incident:

2.3 the Company will liaise with the appropriate parties and use reasonable endeavours to resolve critical issues on an urgent basis. the Company will provide the Client with updates as the resolution progresses.

2.4 For the purposes of allocation and escalation, Client requests for assistance should be made to the Company’s main telephone number or emailed to the appropriate email address assigned to the Client. Contact by any other means will not be subject to the above timescale guidelines.

2.5 The above timescale guidelines will not apply during periods of planned interruption, during periods of non-availability due to a force majeure event, during periods of suspension of Service by the Company or other Third Party Supplier or due to acts or omissions of either the Client or a third party.

2.6 In the event that the Company fails to meet expected timescales on a regular basis, the Client shall have the right to escalate this in accordance with the provisions on dispute under the Agreement.

3. Managed Service Provisions

3.1 This is a 24 x 7 x 365 Remote Support service.

3.2 The following exclusions apply and where these services are provided these will be charged as per paragraph 3.3:

3.2.1. Project management, project engineering, and consultancy services; inc New User/Workstation Onboarding (Adds/Moves/Changes)

3.2.2. Issues in relation to defective hardware;

3.2.3. Issues in relation to custom-written or in-house applications;

3.2.4. Issues in relation to third-party systems not provided via the Company;

3.2.5. Major infrastructure changes, upgrades, redesigns, or other significant changes to IT systems;

3.2.6. Remediation or recovery following security incidents, ransomware, malware infection, or data breach;

3.2.7. Response to major vendor outages or service failures outside the Company’s control;

3.2.8. Rectification or implementation of any unauthorised changes; and

3.2.9. Any other non-routine support activities, as reasonably determined by the Company.

3.3 Work undertaken in relation to any exclusions will be charged on a time and materials basis at the Company’s then current rates, unless the work is completed under an agreed prepaid professional services day rate. In the event that additional Third Party Offerings are required, the Company will, after consultation and consent from the Client, liaise on behalf of the Client to obtain these services.

3.4 Fair Use Provisions

3.4.1 The Services are provided on a fair use basis, intended to cover the Client’s ordinary day-to-day support requirements. For guidance, fair use shall be deemed to include an aggregate of support equivalent to one (1) hour per User per calendar month, calculated across all Users and delivered through any combination of remote or onsite services.

3.4.2 The fair use allowance shall be assessed on an aggregate basis across the Client’s User base. Individual Users may consume more or less than one (1) hour in any given month, provided that the overall usage remains within the aggregate guideline.

3.4.3 Where support requirements materially exceed the aggregate fair use allowance on a recurring basis, or where requests are of a project, bulk, or non-routine nature, the Company may, at its sole discretion, classify such work as Adds/Moves/Changes (AMC). Any such AMC services shall be chargeable at the prevailing AMC rates.

3.4.4 The Company shall provide notice to the Client where support consumption trends indicate usage outside of fair use and shall consult with the Client to agree the most appropriate way to proceed.

4. Professional Services Day Rates

4.1 Project services outside of Managed Services Agreement are typically provided by an dedicated on-site resource, as professional services pre-paid days, for a number of days per week as:

4.1.1. Full day at 8.00 hours per day (carried out Monday to Sunday, between 07:00 and 19:00)

PART 2: CYBERSECURITY SERVICES

1. Cybersecurity Service Description

1.1 the Company Cybersecurity Services are an integrated set of security services provided by the Company and a selected range of services provided by Third Party Security Providers “Third Party Security Services”. These Third Party Security Services can either be provided directly to the Client by the Third Party Provider or provided to the Client by the Company.

1.2 For the Third Party Security Services provided to the Client by the Company, the Company will:

1.2.1. procure the service on behalf of the Client;

1.2.2. manage the Third Party Security Services and provide a single point of contact for the Client in relation to the Third Party Security Services, liaising with the Third Party Providers on behalf of the client;

1.2.3. represent the Client, the Client’s interests and the Client’s requirement to the Third Party Provider;

1.2.4. receive IT security related advice and instructions from the Third Party Security Services, to the service desk; and

1.2.5. manage any incidents which are related to Third Party Security Services by means of recording and monitoring the incident with the Third Party Security Services.

1.2.6. the Third Party Provider will be instructed to carry out specific client requirements regarding the monitoring and reporting of their data.

1.3 Third Party Security Services will be provided subject to any standard terms and conditions of the Third Party Provider where applicable. Any applicable terms in addition to General Terms will be made available to the Client by the Company.

PART 3: HOSTING SERVICES

1. Hosting Service Description

1.1 The Company’s Private Hosted Platform and Services is composed of one or more of the following services, as specified in the Order Form; (i) Private Server Hosting, (ii) Backup as a Service, (iii) Disaster Recover as a Service and (iv) Colocation.

1.2 Private Server Hosting

1.2.1.    The Company provides private hosted Virtual Machines on The Company owned and managed hardware environment in secure datacentres. These virtual machines can provide IT services for clients through applications and data storage.

1.2.2.    The Company will:

1.2.2.1. procure the Data Centre Providers;

1.2.2.2. ensure the infrastructure has appropriate levels of hardware to deliver the Services;

1.2.2.3. provide technical management and maintenance of the Infrastructure and Environment;

1.2.2.4. resolve failures and errors in the infrastructure environments in accordance with support Service Levels detailed in Part 2 of this Schedule 2;

1.2.2.5. manage the Equipment, and Software support for the storage platform (storage arrays and SAN) based on the Vendors warranty and/or a nominated Third Party Supplier;

1.2.2.6. provide Virtual Machine administration including configuration of the virtual environment shared resources, such as processor and memory across the Client’s virtualised environment and configuration of virtual infrastructure including virtual Data store and virtual network;

1.3        Backup as a Service

1.3.1.    The Off-Site Backup Service protects Client Data and systems in the event of loss or corruption of the primary source of the Data or system files. The Service uses a disk based back-up system that writes the backup Data to a geographically redundant storage platform.

1.3.2.    The Company’s obligations. The Company will:

1.3.2.1. provide a secure back-up Data storage within the The Company back-up environment. The Data will be created in one of The Company’s Data Centres and replicated to an alternate Data Centre to ensure that two copies of the back-up Data exist in separate geographical locations;

1.3.2.2. maintain and manage the backup environment and back-up policies according to the Client’s back up policies as agreed between The Company and the Client;

1.3.2.3. resolve failures and errors in the infrastructure environments in accordance with support Service Levels detailed in Part 2 of this Schedule 2;

1.3.2.4. maintain and monitor Data and system back-up jobs and report on their completion status and inform the Client of unsuccessful back-ups;

1.3.2.5. retrieve data from the back-up environment when requested by the Client within the Service Level agreed at the time of the request;

1.3.2.6. conduct standard test restores on a quarterly basis.

1.3.3.    Client’s obligations. The Client will:

1.3.3.1. Be responsible for informing The Company of their backup and data retention requirements, the specific drive(s) or server(s) and backup frequency as agreed from time to time.

1.3.4.    In the event of any interruption to the backup service, The Company’s sole obligations will be to use reasonable endeavours to:

1.3.4.1. notify the Client of the interruption and, where practicable, of the reason for the interruption and its expected duration; and

1.3.4.2. rectify (or arrange for the rectification of) any problem within The Company’s control giving rise to the interruption.

1.3.5.    Given the singular nature of the backup services provided by The Company, the Client acknowledges that it should take steps to implement other backup provision and disaster recovery solutions to safeguard and protect its data.

1.3.6.    The Off-Site Backup Service is limited to the amount of storage specified in the Order Form, with additional Data storage charged at the rates specified in the applicable Order Form.

1.3.7.    Any change, to the Client’s backup and retention policies shall be subject to a change control procedure. The Parties agree the Client shall give The Company three (3) months’ written notice for any change to the Client’s backup and retention. The Parties agree to use the provisions of the applicable Order Form to determine if any adjustments shall be made to the Charges.

1.3.8.    In the event of The Company’s failure to provide the backup services in accordance with the Part 4 of Schedule 2, The Company will use reasonable endeavours to restore the lost or damaged data from the latest intact backup taken. Without prejudice to Clause 8, The Company’s liability for any failure to provide the backup services in accordance with this Part 4 of Schedule 2 shall in no circumstances exceed the amount paid by the Client in relation to such backup services in the 12 months prior to the date of such failure.

1.4        Disaster Recovery as a Service

1.4.1.    The Company Disaster Recovery as a Service relates to loss or failure of the primary data centre facility, or the connectivity between the Client’s Site and the primary data centre facility.

1.4.2.    The Company will:

1.4.2.1. provide a near real-time replication system to maintain a recovery copy of the Client’s Data and server systems;

1.4.2.2. manage Data replication services for all agreed Data to an alternate geographically separate storage array;

1.4.2.3. own the Disaster Recovery processes and work with the Client to determine the definition and initiation of a Disaster Recovery event;

1.4.2.4. manage Data replication services for all agreed Data to an alternate geographically separate storage array.

1.4.3.    As part of disaster recovery services, The Company will work with the Client to execute and document a Business Continuity Plan (BCP) and test, once yearly or as required, to ensure processes and procedures are accurate and recovery objectives are attainable as agreed with the Client at the Client’s expense.

1.5         Co-Location Service

1.5.1.    The Company shall grant the Client the right to operate its own equipment on the infrastructure.

1.5.2.    The Company will:

1.5.2.1. provide rack space, power and cooling as required by the Client’s equipment;

1.5.2.2. provide network and Internet access as agreed between The Company and the Client.

2. Security and Access

2.1         The Company, in partnership with the Data Centre Provider, will:

2.1.1.    provide a secure environment for Services,

2.1.2.    restrict access to approved personnel,

2.1.3.    operate and record CCTV cameras 24/7/365,

2.1.4.    provide the Client with access to Client equipment and data upon Client request

3. Physical Environment

3.1         The Company, in partnership with the Data Centre Provider, will:

3.1.1.    provide UPS protected power to Services,

3.1.2.    provide automatic failover to a backup generator in the event of a mains power failure,

3.1.3.    provide continuous environmental monitoring of the Data Centre to ensure temperature and humidity are maintained at appropriate levels,

3.1.4.    operate a smoke detection system,

3.1.5.    operate a fire suppression system

4. Client Responsibilities

4.1         The Client will be responsible for:

4.1.1.    informing The Company of any devices that it wishes to backup and ensuring that its employees and sub-contractors comply with any backup procedures, the Client will be responsible for any and all data that has not been synchronised with the servers which are backed up under the provisions of this Schedule;

4.1.2.    the production and provision of appropriate corporate Data retention and archiving policies and ensuring that these meet the requirements of any applicable corporate and legislative policies and guidelines;

4.1.3.    ensuring that the Users and all Client personnel adhere to the Client’s Information Security Policy with regards to use of Client Data,

4.1.4.    any costs associated with the collection, storage and return of and storage media from offsite storage;

4.1.5.    providing The Company with application system requirements for any Client managed applications or systems;

4.1.6.    ensuring that a valid support agreement for any Client managed applications has been provisioned and is maintained directly between the Client and the relevant Client Third Party Service Provider;

4.1.7.    providing all Client managed application licenses;

4.1.8.    provide at least a minimum of forty-five (45) days’ notice to The Company to request a Business Continuity Test;

4.1.9.    testing relevant software to ensure that the Users can continue working effectively during Invocation or testing of Business Continuity.

SCHEDULE 3: DATA PROTECTION

1. Definitions

1.1 For the purposes of this Schedule the following terms: “Appropriate Safeguards”, “Appropriate Technical and Organisational Measures”, “Controller”, “Data Portability”, “Data Subject”, “Personal Data Breach”, “Restriction of Processing” “Subject Access Request” and Supervisory Authority” all have the meanings given to them in the Data Protection Legislation.

2. Data Protection

2.1 To the extent that the Client uses the the Company store or process Personal Data as part of the Services, the Client acknowledges that for the purposes of the Data Protection Legislation, the Client is the Controller and the Company is the Data Processor in respect of any such Personal Data.

2.2 the Company will only process Personal Data in accordance with the Client’s written instructions save where required to do so by law.

2.3 The Client warrants and represents to the Company that the Client is the Controller of the Personal Data and that it has all necessary consents and notices in place in order to enable lawful transfer of Personal Data to the Company and permit the Company to process the Personal Data in accordance with and for the purposes contemplated pursuant to this Agreement and that the Client has otherwise complied with and continue to comply with all applicable laws, enactments, regulations, orders, standards and other similar instruments relating to the collection and processing of Personal Data. Paragraph 2 to this Schedule 3 sets out the scope, nature, and purpose of processing by the Company.

2.4 the Company will not use a Sub-Processor without the Client’s prior specific or general written authorisation. Subject to the Company complying with paragraph 2.5, the Client hereby authorises the Company to appoint the Third Party Supplier’s referred to in paragraph 4 below as Sub-Processors to the extent necessary in order to provide the Service.

2.5 Where the Company appoints a Sub-Processor, the following will apply:

2.5.1. the Company will notify the Client of any changes to Sub-Processors made under prior general written authorisation and will allow the Client a reasonable time to object to those changes;

2.5.2. the Company will impose such contract terms on the Sub-Processor as are required by the Data Protection Legislation, especially but not exclusively, those contract terms required under Article 28.3 of the GDPR; and

2.5.3. the Company will remain fully liable to the Client for any acts or omissions of the sub- Processor.

2.6 the Company will not transfer the Personal Data outside of the European Economic Area (EEA) unless:

2.6.1. the Company has obtained the Client’s prior written consent;

2.6.2. Appropriate Safeguards are in place in relation to the transfer;

2.6.3. the Data Subjects whose Personal Data will be transferred have enforceable rights and effective legal remedies; and

2.6.4. the Company can provide an adequate level of protection to any Personal Data that is transferred.

2.7 the Company will put in place Appropriate Technical and Organisational Measures to:

2.7.1. protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, the Personal Data; and

2.7.2. allow the Client to meet its obligations to Data Subjects, including but not limited to:

2.7.2.1. rectification or erasure of Personal Data;

2.7.2.2. restriction Of Processing of Personal Data;

2.7.2.3. data portability; and

2.7.2.4. prompt response to Subject Access Requests.

2.8 the Company will obtain a commitment of confidentiality from anyone it allows to process the Personal Data, including but not limited to:

2.8.1. the Company’s employees, agents, officers and affiliates;

2.8.2. Agency or temporary workers; or

2.8.3. Sub-contractors or Sub-Processors.

2.9 Both parties will assist each other, so far as possible and taking into account the nature of the processing under this Agreement and the information available to the Company, in meeting the Client’s obligations under the Data Protection Legislation, including but not limited to:

2.9.1. the obligation to keep Personal Data secure;

2.9.2. the obligation to notify Personal Data Breaches to the Supervisory Authority;

2.9.3. the obligation to advise Data Subjects where there has been a Personal Data Breach;

2.9.4. the obligation to carry out data protection impact assessments; and

2.9.5. the obligation to consult with the Supervisory Authority where a data protection impact assessment indicates an unmitigated high risk to the processing activities under this Agreement.

2.10 the Company will:

2.10.1. retain all information required to demonstrate that the Company and the Client have met their obligations under the Data Protection Legislation;

2.10.2. submit and contribute to audits and inspections carried out by the Client or a third- party appointed by the Client to carry out such audits or inspections. The Client will endeavour to provide reasonable written notice of the date of inspections or audits;

2.10.3. inform the Client immediately if the Company believes or suspects that it has been given an instruction that does not comply with the Data Protection Legislation; and

2.10.4. notify the Client immediately if the Company becomes aware of or reasonably suspects a Personal Data Breach.

2.11 On termination or expiry of this Agreement the Company shall, at the Client’s choice and expense, delete or return all Personal Data and copies thereof it has within its power, ownership or control.

2.11.1. the Company shall ensure that any return is carried out securely and in accordance with current best practice.

2.11.2. the Company shall ensure that any deletion is carried out securely and in accordance with current best practice.

3. Processing under this Agreement

3.1 The Scope of the processing will encompass: receiving the Personal Data from the Client, being provided with access to the Personal Data by the Client, organising or otherwise filing the Personal Data and collating the Personal Data in an organised and transportable form.

3.2 The Nature of the processing will be collection, recording, structuring, storage, organised filing, retrieval, consultation, use, disclosure by transmission, alignment and combination of the Personal Data.

3.3 The Personal Data was collected and will be processed for the following Purpose:

3.3.1. Providing the Services under the Agreement

3.4 The Duration of the Processing under this Agreement will be from the commencement of this Agreement until the completion of the Services.

3.5 The Types of Personal Data processed under this Agreement will be:

3.5.1. Contact details;

3.5.2. company details;

3.5.3. job titles;

3.5.4. IP addresses; and

3.5.5. bank details.

3.6 The Categories of Data Subject whose Personal Data will be processed under this Agreement will be:

3.6.1 Employees, contacts and suppliers of the Client.

4. Consent to Sub-Processing and Transfer of Personal Data Outside the EEA

4.1 The Client hereby authorises the Company in accordance with paragraph 2.4 to engage the following as sub-processors (“Sub-Processors”):

4.1.1. SYG Computing Limited (UK)

4.1.2. SYG Research and Services Limited (UK)

4.1.3. Toggen IT Services (Australia)

4.1.4. Strategix Group and Subsidiaries (South Africa)

4.1.5. Kethtech (South Africa)

4.1.5. 1st Soft Limited (UK)

4.1.6. Cybereye World Limited (UK)

4.1.6. Thea Intelligence Ltd (UK)

4.2 the Company warrants that it has satisfied the requirements of paragraph 2.5 in relation the Sub-Processors.

4.3 The Sub-Processors are based in the countries stated in paragraph 4.1 and, to the extent the Sub-Processors are based outside the EEA; the Client hereby consents in accordance with paragraph 2.6 to the Personal Data being transferred outside the EEA. the Company warrants that it has satisfied the requirements of paragraph 2.6 in relation to the transfer of Personal Data to the Sub-Processors based outside the EEA.

4.4 You agree to consent to the use of the Sub-Processors and export of the Personal Data outside the EEA on the terms set out above.