A managed IT service
agreement for XXXXX
Between Wanstor Ltd
and XXXXX
dated 24 March 2016
24/7 IT SUPPORT + CONSULTANCY | HOSTED CLOUD SOLUTIONS | CONNECTIVITY + COMMUNICATIONS | PRODUCTIVITY + WORKFLOW
PARTNERSHIPS + ACCREDITATIONS
For questions regarding this document please email faz@wanstor.com or telephone 0207 592 7860
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Agreement
DATED: 24 March 2016
PARTIES:
WANSTOR LIMITED, a company registered in England and Wales with registered number 04524830 and with its
registered office at 124-126 Borough High Street, London SE1 1LB (“the Company”); and
XXXXX a company registered in England and Wales with Registered company number: and with its registered office
at address (“The Customer”).
BACKGROUND:
A
The Company is an established and reputable provider of IT hardware and network support and maintenance
services;
The Customer provides ….
The Customer wishes to procure, and the Company to provide, network support, infrastructure hosting and
maintenance services, in accordance with the subject to the terms and conditions of this Agreement.
B
C
OPERATIVE PROVISIONS:
1
1.1
Definitions and Interpretation
In this Agreement unless the context otherwise requires:
“Affiliate” means in relation to a Party, any Group Company of that Party from time to time;
“Agreement” means this agreement and all Schedules and recitals to this agreement;
“Charge” means the amount outlined in, as varied annually in accordance with clause 12.3, in consideration
of the provision of the Services;
“Confidential Information” means all information disclosed by or on behalf of a Party (in whatever medium
including in written, oral, visual or electronic form) including all business, financial, commercial, technical,
operational, organisational, legal, management and marketing information;
“Contract Year” means a 12 month period commencing on the Commencement Date or an anniversary
thereof;
“Control” means the ability alone or with others to require compliance, whether as a result of shareholding,
contract or otherwise;
“Customer Data” means (i) all data, information, text, drawings and other materials which are embodied in
any electronic, optical, magnetic or tangible medium, and which are supplied to the Company by the
Customer or which the Company or any subcontractors of the Company are required to generate, collect,
process, store or transmit in connection with this Agreement; and (ii) any Personal Data for which the
Customer is the Data Controller;
“Data Controller” means as defined in the Data Protection Act 1998;
“Dispute” means as defined in clause 25.1;
“Equipment” means as defined in clause 5.1;
“Equipment Inventory” means as defined in clause 5.1;
“Equipment Maintenance Service” means as defined in clause 5.3;
“Force Majeure” means any cause beyond the reasonable control of a Party which affects the performance
by a Party of its obligations under this Agreement, and whose effects are not capable of being overcome by
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reasonable expense of that Party, including (insofar as beyond such reasonable control) acts of God, war,
riots, insurrection, embargoes, strikes, fire, floods, tempest or terrorism;
“Good Industry Practice” means the exercise of that degree of skill, care, prudence, efficiency, foresight and
timeliness which would be expected from a highly skilled and experienced person engaged in providing
services the same or similar to the Services;
“Group Company” means, in relation to a company, a direct or indirect subsidiary or holding company of that
company or a direct or indirect subsidiary of any such holding company; for which purposes “holding
company” and “subsidiary” shall mean as set out in sections 736 and 736A of the Companies Act 1985;
“Service desk Service” means as defined in clause 6;
“Initial Term” means as defined in clause 15.1;
“Intellectual Property” means all inventions, patents, utility models, designs (both registered or unregistered
and including rights relating to semi-conductor topographies), database rights, copyright and trade marks
(both registered and unregistered), together with all rights to the grant of and applications for the same and
including all similar or analogous rights and all other rights in the nature of intellectual and industrial property
throughout the world and all future rights of such nature, in each case for the full term of the relevant right;
“Losses” means losses, costs, claims, demands, actions, fines, penalties, awards, liabilities and expenses
(including legal expenses);
“Monitoring Service” means as defined in clause 7;
“Minimum Term” Means the minimum period for which the contract will operate and during which the
Customer will pay the full fees;
“Network” means the entirety of the Customer’s web-based private network used in the operation of the
Customer’s business, including the Equipment, Supported Software operating on the Equipment, LAN
switches, routers and broadband links;
“Notified Fault” means as defined in clause 6.2;
“Parties” means the Company and the Customer collectively, and “Party” means either of them and their
permitted assignees;
“Personal Data" means as defined in the Data Protection Act 1998;
“Proactive Support Service” means as defined in clause 8;
“Process” means, with respect to Personal Data, as defined in the Data Protection Act 1998;
“Quarter” means a period commencing on a Quarter Day, the first Quarter commencing on the
Commencement Date and expiring at midnight on the day before the next Quarter Day;
“Quarter Day” means the first day of each of [March, June, September and December] in each year of this
Agreement;
“Records” means records or embodiments of Confidential Information (or any further information derived
from the Confidential Information) in whatever medium including any document, electronic file, note, extract,
analysis, model, prototype or other representation or means of recording or recovering information;
“Replacement Services” means any services which the Customer procures in substitution for the Services
following the expiry or termination of this Agreement, whether those services are provided by the Customer
internally and/or by any Third Party;
“Replacement Supplier” means any Third Party provider of Replacement Services appointed by the Customer
from time to time;
“Service Credits” means the sums payable by the Company to the Customer in respect of any Service Failure;
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“Service Failure” means, in respect of any part of the Services, a failure in any Quarter to meet the relevant
Service Threshold as set out in Schedule;
“Service Levels” means the service levels set out in Schedule;
“Service Threshold” means as set out in Schedule;
“Services” means the services provided by the Company to the Customer under this Agreement, as outlined
in, including the Service desk Service, the Equipment Maintenance Service, the Monitoring Service and the
Proactive Support Service;
“Software Virus” means any software virus, Trojan horse, time bomb or other code that is harmful or which
enables access to the Network or theft of the Customer Data or otherwise impairs the operation of the
Network or Equipment;
“Standard Rates” means the standard daily rates for the provision of professional IT services by the Company,
as set out in Error! Reference source not found.;
“Supported Software” means third party application software supported by the Company as set out in Error!
Reference source not found. or as notified by the Company from time to time;
“Third Party” means any person or entity which is not a party to this Agreement, including as Third Parties
any Affiliates of either party and contractors (including subcontractors);
“Works” means as defined in clause 30.2; and
“Working Day” means a day, other than a Saturday or a Sunday, on which banks are open for business in
London.
1.2
In this Agreement, unless otherwise specified or the context otherwise requires:
1.2.1
words importing the singular only shall include the plural and vice versa; and words importing the
whole shall be treated as including a reference to any part thereof;
1.2.2
reference to a “person” includes any individual, firm, company, corporation, body corporate,
government, state or agency of state, trust or foundation, or any association, partnership or
unincorporated body of two or more of the foregoing (whether or not having separate legal
personality and wherever incorporated or established);
1.2.3
reference to “written” or “in writing” includes faxes and any non-transitory form of visible
reproduction of words but not email or text messaging via mobile phone;
1.2.4
reference to this Agreement or to any other document is a reference to this Agreement or to that
other document as modified, amended, varied, supplemented, assigned, novated or replaced from
time to time as permitted by the provisions of this Agreement; and
1.2.5
reference to any legal term for any action, remedy, method of judicial proceeding, legal document,
legal status, court, official or any legal concept, state of affairs or thing shall in respect of any
jurisdiction other than England be deemed to include that which most closely approximates in that
jurisdiction to the English legal term.
1.3
Any phrase in this Agreement introduced by the term “include”, “including”, “in particular” or similar
expression will be construed as illustrative and will not limit the sense of the words proceeding that term.
1.4
Headings used in this Agreement are for reference only and shall not affect its construction or interpretation.
2
2.1
Scope of Agreement
This Agreement shall apply to all IT Hosting and/or support services provided by the Company (or any
Affiliate of the Company) to the Customer (or any Affiliate of the Customer).
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2.2
All quotations made or orders placed for any IT support and/or maintenance services to be provided by the
Company (or any Affiliate of the Company) to the Customer (or any Affiliate of the Customer) shall be
deemed to incorporate and be subject to the terms of this Agreement.
2.3
No variation to this Agreement shall be effective unless it is in writing and signed by or on behalf of each
Party.
2.4
The terms of this Agreement shall prevail over any alternative terms put forward by the either Party unless
the other Party expressly agrees to an amendment to this Agreement in writing, in accordance with clause
2.3.
2.5
Employees of the Company are not authorised to make oral representations as to the description or quality
of the Services. If any pre-contractual representation is made or opinion expressed orally by or on behalf
of the Company which materially affects the Customer’s decision to purchase the Services the Customer
must ensure that such details are confirmed in writing by a director or authorised representative of the
Company whereupon such details shall form part of this Agreement but otherwise, save in respect of fraud
or negligence, no liability can be accepted in respect of any such oral representations.
2.6
In the event of a conflict between any of the terms of this Agreement, the conflict shall be resolved
according to the following order of priority, (i) the clauses of this Agreement, then (ii) any documents
attached to or referred to in this Agreement (including its Schedules), then (iii) the recitals to this Agreement.
2.7
The Company acknowledges that it is not the exclusive provider of IT support and maintenance services to
the Customer and the Customer may at any time perform any part of the Services itself or procure them
from any Third Party.
3
3.1
Provision of the Services
The Company shall provide the Services to the Customer, in accordance with this Agreement, commencing
on the following dates (or such other dates as may be agreed between the Parties in writing):
Services
Date of commencement of provision of Services
Office 365
IT Support and onsite engineer
Migration Service
Hosting Service
3.2
[
[
[
[
as per agreed start date
as per agreed start date
as per agreed start date
as per agreed start date
]
]
]
]
The Services shall be provided in accordance with Good Industry Practice, and the Company shall in its
provision of the Services meet or exceed the Service Levels (as set out in Schedule).
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3.3
The Services shall be provided during the following hours:
Services
Remote Service desk
Service
Equipment
Maintenance Service
Monitoring Service
Hosting Service
On-site Support
Engineering
3.4
Normal hours of operation
09:00-17:30
Mon-Fri inclusive
(excluding UK national or bank
holidays)
09:00-17:30
Mon-Fri inclusive
(excluding Christmas day and New
Year’s day but including UK national
or bank holidays)
24 hours a day
7 days a week
24 hours a day
7 days a week
09:00-17:30
[Mon-Fri] inclusive
(excluding UK national or bank
holidays)
Out of hours operation
Priority A faults only1
Priority A faults only2
N/A
N/A
Priority A faults only3
In the event of a Service Failure, then without prejudice to its other rights or remedies under this Agreement
or at law:
3.4.1
the Customer shall be entitled to Service Credits in accordance with Schedule; and
3.4.2
the Customer may require the Company to re-perform the Services or to comply with such
obligations (as the case may be), at no additional charge to the Customer.
3.5
In addition, without prejudice to the Customer’s other rights and remedies, if there is a Service Failure or if
the Company believes that there will be a Service Failure, the Company shall (at no additional charge to the
Customer) deploy all additional resources and take all remedial or preventative action that is necessary or
desirable to rectify or to prevent any actual or anticipated Service Failure from taking place or recurring,
and to minimise the effect of any actual Service Failure.
3.6
The Company shall at its own expense ensure that all of its hardware, software and equipment used in
connection with the provision of the Services and which are in possession or control of the Company are
refreshed (by replacement, upgrading, patching, modification or otherwise) on an ongoing basis
throughout the term of this Agreement so as to ensure that all applicable elements of the Company’s IT
system are at a level of technological change generally being achieved in accordance with Good Industry
Practice by similar organisations providing similar services to the Services.
3.7
The Company shall provide all reasonable co-operation and assistance to the Customer, at no additional
cost to the Customer, in connection with the orderly transition of hardware and/or network maintenance
and support services from the Customer’s current providers to the Company.
3.8
Work performed out-side of normal working hours will be charged at the appropriate hourly rate.
Work performed outside of normal office hours will be charged at the appropriate hourly rate.
Work performed outside of normal office hours will be charged at the appropriate hourly rate.
3
Work performed outside of normal office hours will be charged at the appropriate hourly rate.
1
2
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4
4.1
5
Non-Solicitation
The Customer shall not without prior written consent of the Company, for the duration of this Agreement
and for a period of two years after its termination however caused, employ any employee or ex-employee
of the Company. Should a member of the Company’s staff be employed by the Customer without the
written consent of the Company then a fee calculated as 100% of the gross annual salary of the employee
in question will be payable and due upon engagement.
Equipment Maintenance Service
5.1
Within 30 days of the Commencement Date, the Customer shall with the reasonable assistance of the
Company identify all back-office equipment, hardware, peripherals and devices owned or controlled by the
Customer or any Affiliate of the Customer and forming part of the Customer’s IT systems within the UK
(collectively “Equipment”), details of which shall be recorded in writing (“Equipment Inventory”).
5.2
The Customer shall provide the Company with as much notice as reasonably possible of any additions,
replacements or removals of any items of Equipment from the Equipment Inventory. The Company shall at
all times maintain the Equipment Inventory and ensure that it is up to date, accurate and complete. The
Equipment Inventory shall be deemed to be Confidential Information of the Customer.
5.3
The Company shall provide repair, replacement, rectification and maintenance services in respect of
Equipment specified in the Equipment Inventory from time to time (“Equipment Maintenance Service”, if
further defined in Schedule 1), in accordance with the Service Levels, as follows:
5.3.1
the Customer shall request any such services via the Service desk as it deems fit, and shall in any
event promptly notify the Company if any item of such Equipment develops a material and recurrent
or persistent operating fault;
5.3.2
the Company shall, if it becomes aware of any fault in the Equipment pursuant to the Monitoring
Service, log such fault via the Service desk; and
5.3.3
the Company shall, in respect of all faults logged via the Service desk (and which in the case of faults
logged by the Company have been approved in advance by the Customer) diagnose such fault and
repair or remedy, or where covered by warranty and at the option of the Customer, replace any
defective parts of such Equipment to which such faults are attributable;
5.3.4
Where equipment is covered by manufacturer warranty, the company shall manage the warranty
process and where necessary provide all necessary on-site assistance to the warranty provider.
5.4
If Equipment Maintenance Services are required to be carried out on-site, the Company shall liaise with the
Customer to agree upon a suitable time for any such services to be carried out. In any event the Company
shall, so far as possible, ensure that as little disruption as possible is caused to the Equipment, the Network
and the Customer’s business operations.
5.5
The Company shall keep the Customer informed at all times of any repairs or replacements (or proposed
repairs or replacements) to any parts of the Equipment which will or may have any detrimental effect on
the stability, performance, functionality or capacity of the Equipment or the Network or which will or may
result in loss of or corruption to any Customer Data.
5.6
All test equipment or tools which may be used in the performance by the Company of the Services under
this agreement shall belong to the Company. The property in all replacement parts incorporated into any
Equipment by the Company pursuant to the Equipment Maintenance Services shall be transferred to and
vest in the Customer.
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5.7
6
6.1
The Support and Maintenance Service shall not cover:
5.7.1
wilful acts of negligence or use of the Equipment or exposure to physical or electrical stress outside
of its manufacturers’ operating instructions;
5.7.2
any damage occurring as a direct result of an upgrade or modification to the Equipment carried out
by the Customer save for any upgrade or modification recommended by the Company or carried out
with the Company’s approval or acquiescence;
5.7.3
faults due to viruses, spy ware or unlicensed software save where any such viruses, spy ware or
unlicensed software has been supplied or introduced to the Network (whether or not deliberately)
by the Company; or
5.7.4
Equipment which at the relevant time is not listed in the Equipment Inventory (provided that the
Equipment Inventory is accurate, complete and up to date).
5.7.5
Faults which arise as a result of a breach of customer obligations
5.7.6
Consumable items, batteries, tapes, printer maintenance kits, drums, toner, laptop power supplies,
keyboards, mice.
5.7.7
Equipment not covered by current manufacturer warranty
Service Desk Service
The Company shall provide a remote Service desk facility to the Customer via telephone, facsimile, Internet
or email during the supported hours as set out in clause 3.3, for the provision of advice and assistance on
issues relating to the use by the Customer’s employees and consultants (and those of any Affiliate of the
Customer) of any Equipment listed in the Equipment Inventory or any Supported Software operated on
such Equipment, or in respect of the use of the Network (“Service desk Service”), including:
6.1.1
answers/solutions by telephone to problems relating to a failure or apparent failure of Supported
Software to comply with its specification or product description;
6.1.2
usage and functionality support for Supported Software; and
6.1.3
Support for general “how to“ questions.
6.2
All faults, queries, problems or incidents in respect of Equipment, for which the Equipment Maintenance
Service is requested or required, shall also be logged via the Service desk Service.
6.3
The Company shall respond to all faults, queries, problems or incidents (whether in respect of Equipment,
Supported Software or otherwise relating to the Network) logged by or on behalf of the Customer via the
Service desk Service (collectively “Notified Faults”) in accordance with the Service Levels in Schedule. The
Company shall at the time of logging the relevant Notified Fault, acting reasonably, designate the relevant
Priority Level (as that term is defined in Schedule).
6.4
Upon reporting any Notified Fault relating to any Equipment, the Customer shall provide the Equipment
identification number and Customer reference number. In respect of each Notified Fault, the Customer
shall automatically be given a fault reference number by the Company.
6.5
The Company shall resolve or remedy all Notified Faults in accordance with the Service Levels in Schedule.
7
7.1
Monitoring Service
The Company shall remotely provide Simple Network Management Protocol (SNMP) monitoring services
of the Network, as further set out in (“Monitoring Service”). The Company shall provide the Monitoring
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Service continuously throughout the term of this Agreement.
following:
The Monitoring Service includes the
7.1.1
availability of Equipment and the Network;
7.1.2
exception reporting for variation from normally accepted levels of usage;
7.1.3
trend reporting; and
7.1.4
provision to the Customer of a web based ‘dashboard’ style application which shall be continuously
updated in real time, whereby the Customer is provided access to details of the status of the
information being monitored by the Company.
7.2
If any faults or issues are detected pursuant to the Monitoring Service, the Company shall inform the
Customer without delay and shall log such fault or issue with the Service desk, and thereafter shall respond
and resolve all such faults or issues in accordance with the Service Levels.
7.3
Each additional monitoring sensor required or requested will incur a £ 1.00 per sensor per month fee and a
one off £ 20.00 set up fee.
8
Proactive Support Service
8.1
The Company shall carry out proactive IT support and monitoring activities, as set out in
8.2
(“Proactive Support Service”), which includes:
8.2.1
maintaining and updating a schedule of on-site and offsite activity designed to ensure the on-going
reliable operation of the Network. Site visits or remote work will be scheduled to take place on a
regular recurring basis;
8.2.2
allocation of a team of “customer preferred” technical consultants (being employees of the Company
and/or employees of the Company’s sub-contractors) who will be primarily responsible for liaising
with the Customer in respect to the provision of the Services.
8.2.3
regular reviews of the operation of key services within the Network, in consultation with the
Customer, including:
a function of critical equipment within acceptable limits;
b review of server event logs;
c operation of back-ups;
d operation of AV software;
e installation of appropriate updates; and
f appropriate reconfiguration of Equipment to resolve problems noted by the Customer or the
Company.
When requested by the customer or deemed necessary by Wanstor in order to expedite a support
query, Wanstor will restore customer data. Data is normally restored for one of the following
reasons
8.1.4
1)
2)
3)
4)
5)
6)
7)
8)
9)
Virus damage (encryption/corruption/deletion)
Accidental/Deliberate deletion of data by a user
Recovery of old document version after change of an original
Legal search
Recovery of a computer after a failed disk or array of disks
Recovery from fault or failed service
System failure following an update
Data transfer as part of a Migration from one system to another or otherwise
Disaster recovery/theft
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All requests for data recovery and restoration for back-up will be subject to standard contract rates for backoffice IT support and do not form part of any inclusive costs.
8.3
If in the reasonable opinion of the Company more than sufficient time has been allocated in order to
complete a schedule of works pursuant to the Proactive Support Service, the time allocated but unused
may be used for additional tasks requested by the Customer.
8.4
The Company shall also provide ongoing reports on the appropriateness of the Equipment for usage, and
the need or relevance of available new technologies.
8.5
The Proactive Support Service specifically excludes the following:
9
8.5.1
installation of server operating system upgrades (other than patches);
8.5.2
installation of server based applications; and
8.5.3
installation, and configuration of Firewalls or virtual private networks (VPNs)
8.5.4
Installation and configuration of desktop PCs, Laptops, and Printers
Hosting Service
The Agreement governs the provision of hosted server services, including, Managed, Windows and Linux
Server products, (the "Services") to the Customer and certain administration and servicing thereof. The
Services comprise making available for use by the Customer a dedicated Windows or Linux server with root
or administration rights, for the exclusive use of the Customer. If the subject matter of the agreement is a
virtual server, the customer receives memory capacity or server hardware not solely designated to them. The
server functions granted to the customer are made available based on software operation.
Wanstor provides the use of a virtual Server to the Customer, for the exclusive use of the Customer, excepting
maintenance of the virtual Server hardware, at the price agreed upon before the initiation of service, for the
term as defined. The Customer represents and warrants that the Customer has or has access to the knowledge
and expertise necessary to configure, maintain, monitor, and secure the virtual Server.
we aim to deliver the highest possible levels of up-time, and agree that the Hardware on which your Virtual
machine is based, and service critical infrastructure, including Power and Network Connectivity will be
available for 100% of the time (excluding scheduled maintenance, advance notice of which will be given
wherever possible).
In the event of an outage to one of these service components which results in server downtime customers
may be entitled to claim a service credit of one day's service fee for every hour that the server is
unavailable, depending upon the outage circumstances. The period of the outage will be measured from
the time you report the problem to our confirmation of restoration of service.
SLA claims may be made up to a maximum of one month's service fee in any calendar month.
Outages caused by third party software installations or other modifications to the default server operating
system as deployed do not fall within the terms of this Service Level Agreement.
9.1.1
The Customer is responsible for ensuring that they will not display via the webspace any materials
which:
9.1.2
Break, contravene, infringe or violate any UK or Foreign Laws or regulations;
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9.1.3
The Customer agrees that the Supplier shall, under no circumstances, be liable for any damages
resulting from loss of profits or data arising out of or in connection with this Agreement. In particular
the Supplier will not be liable for the following:
9.1.4
interruption of the Customer’s business; events beyond the reasonable control of the Supplier;
application of the Dispute Policy
9.1.5
Administrative access or "root" access to the server is limited to you and your authorised agents. As
a general rule, wanstor has no access to the contents of your server. Nevertheless, Wanstor reserves
the right to require, at its discretion, software and/or hardware upgrades for the purposes of
maintaining security and stability of the services provided and may require the installation of such
upgrades. Standard fees for such upgrades shall be set by Wanstor from time to time.
9.1.6
The Customer agrees not to maliciously or intentionally interfere with the proper operation of the
server and network, including but not limited to defeating identification procedures, obtaining access
beyond that which the Customer is authorised for, and impairing the availability, reliability, or quality
of service for other customers. The Customer further agrees not to interfere with the proper
operation of other systems reachable through the Internet, including any attempt at unauthorised
access. The Customer agrees to follow the Acceptable Use Policy of any network or service to which
the Customer connects.
9.1.7
Except with respect to issues concerning the physical security of the data center facilities, the
Customer agrees that the security of the server and all Services is solely the Customer's responsibility.
It is the sole responsibility of the Customer to maintain and update security software on the virtual
Server. Under no circumstance will Wanstor be held liable for security breaches and damage caused
by the Customer's failure to maintain or update the security software or to maintain adequate
security protocols in the administration of its servers.
9.1.8
To secure Servers from external misuse, Customers are encouraged to utilise packet filtering
technology.
9.1.9
The Customer agrees that if the security of the Customer's server has been compromised in any way,
the Customer will notify 1&1 immediately in writing as set forth in Clause 21.2 herein. The Customer
shall be held fully responsible for any misuse or compromise of the Customer's server for which 1&1
is not properly notified. The Customer agrees that if any security contraventions are believed to have
occurred in association with the Customer's server, 1&1 has the right to suspend access to the server
pending an investigation and resolution. The Customer also agrees that 1&1 has the right to
cooperate in any government or legal investigation regarding any aspect of its services, including
any servers used by the Customer. Any use of 1&1's system to engage in software piracy or other
contraventions of law will result in service suspension and be immediately reported to the
appropriate authorities.
9.1.10
Without special agreement Wanstor is not obliged to undertake backup of data.
ACCEPTABLE USE POLICY
9.1.11
All non-authorised or illegal access to IT systems (e.g. "hacking" will lead to the immediate blocking
of the server without prior warning.
9.1.12
Each Customer who operates a server is solely responsible for all stored and transmitted data of the
server and all actions which emanate from the server. The Customer must take adequate measures
which comply with the current state of technology to ensure that any misuse of the server is
effectively prevented. Wanstor reserves the right to block any server at any time which causes a loss
of network integrity or affects the network operation of other servers without prior warning including
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those actions which are not specifically referred to below. Wanstor further reserves the right to
remove a server from the network if it is deemed to be causing excessive load or traffic over an
unacceptably long period.
9.1.13
IP SPOOFING
IP spoofing refers to the falsification of the IP sender address for outgoing IP packages. This
technology is generally used to conceal the origin of IP packages. Wasntor has installed anti-spoofing
filters in order to prevent IP spoofing. All attempts at IP spoofing are automatically logged. Any
attempt at IP spoofing will lead to the immediate blocking of the server without prior warning.
9.1.14
MAC SPOOFING AND MAC FLOODING
MAC spoofing refers to the falsification of a sender address of an Ethernet framework. This
technology is often used to give a false identity in the local network or for a router. MAC flooding
refers to the sending of Ethernet frameworks with a number of different sender addresses for the
purpose of flooding MAC databanks of switches thus causing a malfunctioning of these switches.
Wanstor has put in place measures which in the event of any attempt at MAC spoofing or MAC
flooding trigger an immediate and automatic blocking of the server without prior warning. All
attempts at MAC spoofing and MAC flooding are automatically logged.
9.1.15
ARP SPOOFING AND ARP FLOODING
ARP spoofing refers to the falsification of an ARP entry on a router by unsolicited ARP replies. This
technology is often used to prepare a man-in-the-middle attack. ARP flooding refers to the mass
transmission of ARP replies for the purpose of flooding the ARP databank of a router and thus
causing a malfunctioning of this switch. All attempts at ARP spoofing and ARP flooding are logged
and will lead to the immediate blocking of the server without prior warning.
9.1.16
TRANSMISSION OF SWITCH PROTOCOL FRAMEWORKS
The transmission of switch protocol frameworks, in particular spanning tree protocol frameworks
(BPDUs) will lead to the immediate and automatic blocking of the server without prior warning. All
attempts to transmit switch protocol frameworks are logged.
9.1.17
TRANSMISSION OF SPAM AND MALWARE
Spam refers to the mass transmission of unsolicited or unrequested email advertisements. Malware
refers to any type of injurious software e.g. viruses, worms, trojans, backdoors, spyware or illegal
dialers. The sending of spam can lead to a warning being sent to the server operator or to the
immediate blocking of the server without prior warning depending upon the gravity of the
infringement. The sending of Malware will lead to the immediate blocking of the server without prior
warning.
9.1.18
PHISHING
Phishing refers to illegal attempts to release access data for security areas to a wide distribution of
users. Well known websites are often imitated so as to appear deceptively genuine for this purpose.
The websites are reached under domain names which are similar to the original domain names. Users
are invited by misleading emails to enter their access data on such hoax websites. Phishing will lead
to the immediate blocking of the server without prior notice.
9.1.19
DENIAL OF SERVICE ATTACKS
Denial of Service attacks (DoS) refers to an attack on a server with the purpose of disabling one or
more of its services. This generally occurs by overloading e.g. by attacks with a number of small UDP
packages or TCP-SYN packages. Where the attack is coordinated by a larger number of other systems
this is referred to as a Distributed Denial of Service (DDoS). 1&1 has put in place measures which
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permit the empirical recognition of Denial of Service attacks. All Denial of Service attacks are logged.
A Denial of Service attack will lead to the immediate blocking of the system without prior warning.
9.1.20
SCANNING OF EXTERNAL COMPUTERS
The Scanning of computers refers to the systematic searching for services on this computer with the
purpose of detecting weaknesses in the services in order to utilise them for hacking at a later time.
The scanning of external computers can lead to a warning being sent to the operator of the service
or to the immediate blocking of the server without prior notice according to the seriousness of the
infringement.
10 Force Majeure
10.1
Any failure or delay by either Party in the performance of its obligations under this Agreement due to any
event of Force Majeure shall not be deemed to be a breach of the provisions of this Agreement by such
Party, to the extent that and for so long as such delay or non-performance is due to such event of Force
Majeure.
10.2
The Party seeking to rely on this clause 10 shall notify the other of the fact and circumstances and shall use
all reasonable endeavours to minimise the impact of such circumstances and to perform its obligations as
soon as possible. If such delay or failure persists for more than 10 Working Days, the Party not affected
may, as its option, terminate this Agreement with immediate effect by giving prior written notice of such
termination to the other Party.
11 Customer Obligations
11.1
The Customer shall, during the term of this Agreement:
11.1.1
utilise the Equipment correctly in accordance with the manufacturers’ or suppliers’ operating manuals
and instructions and with such supplies and consumables as are in accordance with the
manufacturers or suppliers’ requirements, and shall (save to the extent to be carried out by the
Company under this Agreement) promptly and regularly carry out all operations or maintenance
routines (if any) as are set out or referred to therein; and
11.1.2
only use the Equipment for the purpose for which it was designed;
11.1.3
house the Equipment in suitable clean premises and under suitable conditions
11.1.4
not deliberately subject any Equipment to unusual physical or electrical stress or otherwise neglect,
misuse or other wilfully damage the Equipment; and
11.1.5
provide the personnel of the Company or its sub-contractors access during normal working hours
(or as otherwise agreed) to the Customer’s premises and Equipment as such personnel may
reasonably require in order to provide the Services, and provide such personnel with reasonably
adequate working space and such light, telephone and power supplies as such personnel may
reasonably require in order to provide the Services, provided always that the Customer shall reserve
the right to refuse entry and/or eject any person or persons from its premises as it thinks fit in its
sole discretion, and provided that the Company shall procure that all such personnel shall at all times
whilst on the Customer’s premises comply with all health and safety, working practices and
environmental policies and procedures of the Customer which are notified to the Company in
advance.
11.1.6
Keep Wanstor informed of changes or planned changes which might affect the performance of the
equipment.
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11.1.7
Exercise reasonable care and skill in the use of the equipment
11.1.8
Ensure that active support is available for 3rd party applications e.g. Sage, PS Financials, etc
11.1.9
Ensure software is legally and correctly licensed
11.1.10 Notify Wanstor of any additional items of equipment or software which have been added to, or
removed from the network.
12 Charges
12.1
The Charges are fixed subject to variation in accordance with clause 12.3. The Charges shall include the
cost of all labour and replacement parts (subject as hereinafter provided).
12.2
The Charges do not include:
12.2.1
the cost of any of items or accessories which are supplied by the Company to the Customer;
12.2.2
electrical work carried out by the Company or one of its sub-contractor which is external to the
Equipment, but excluding work required to be done in the normal course of installation,
commissioning, maintenance or repair of the Equipment; or
12.2.3
rental charges for new or replacement Equipment procured for the Customer by the Company;
in respect of which the Company shall not charge the Customer without obtaining the Customer’s prior
approval of the costs to be incurred, and which (in respect of any additional services carried out) shall be
chargeable in accordance with the Standard Rates.
12.3
The Charges are subject to annual review 1 year from the Commencement Date. The Company may on
each such anniversary increase the Charges payable in the immediately previous 12 month period by a
percentage increase of not more than the percentage increase in the UK Retail Prices Index over such
previous 12 month period. The Company shall notify the Customer in writing as soon as possible of any
such increase.
12.4
Charges for hosting services are based on usage
12.5
The company may increase the charges above the inflationary level based on increased costs passed on by
the following suppliers
12.5.1
Microsoft
12.5.2
Level3
12.5.3
BT
12.5.4
Trend Micro
12.6
The Charges less applicable Service Credits shall be payable on a quarterly basis on each Quarter Day, as
set out in this clause. On each Quarter Day or as soon as possible thereafter the Company shall invoice the
Customer in respect of an amount equal to the Charges payable in respect of the forthcoming Quarter less
all Service Credits due in respect of the immediately preceding Quarter. Subject to receipt of a valid VAT
invoice, and in the absence of any bona fide query, the Company shall pay such invoiced amount within 30
days of the date of invoice. The Company shall not back-date invoices and shall send all invoices to the
Customer on the same day they are raised. All invoices shall be fully itemised to show a breakdown of the
costs of the components of the Services and details of all Service Credits.
12.7
Service Credits shall be payable by the Company to the Customer, by means of deduction from Charges in
accordance with clause 12.6, in respect of any Service Failures in the relevant Quarter, up to a maximum of
5% of the total Charges due in the relevant Quarter. To receive the credit if any of the guarantees have not
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been met, the customer must e-mail accounts@wanstor.com within 20 days of receiving the monthly
executive summary report. Service Credits shall be calculated in accordance with Schedule. The Parties
agree that the payment of Service Credits is not a penalty and is a genuine pre-estimate of loss likely to be
suffered by the Customer in respect of any Service Failure.
12.8
Subject to prior approval, the Company may be reimbursed for its reasonable travel costs outside the
Greater London area in order to visit other sites or other premises of the Customer pursuant to the provision
of the Equipment Maintenance Service. Subject to the foregoing, the Company shall bear all costs and
expenses incurred by it, its employees, agents or sub-contractors in respect of the provision of the Services.
12.9
All installations, or any IT support and maintenance service provided by the Company at the Customer’s
request which falls outside the scope of the Services shall be chargeable at the Standard Rates. All such
additional services shall not be chargeable until completion of such services to the reasonable satisfaction
of the Customer, unless agreed otherwise in writing. The Customer shall pay within 30 days of the date of
invoice in respect of any such services.
12.10
All Charges and other sums due under this Agreement are stated exclusive of value added tax.
13 Sub-Contracting
13.1
The Company shall not sub-contract any of its obligations under this Agreement (whether in whole or in
part) without obtaining the prior written consent of the Customer (such consent not to be unreasonably
withheld). The Company shall ensure that all approved sub-contractors engaged by it are suitably qualified
and experienced, and shall remain responsible and liable for all acts and omissions of such sub-contractors
as if they were the acts or omissions of the Company. The Company shall be the Customer’s sole point of
contact for the Services, notwithstanding the engagement of any sub-contractors.
14 Assignment
14.1
Save as set out in clause 13, neither Party may assign, transfer (in whole or part), charge or deal in any
manner with this Agreement or any of its rights or obligations under it to any other Party without the prior
written consent of the other Party.
14.2
The Customer may assign all or any of its rights and obligations under this Agreement to any Affiliate of
the Customer [or to any successor in title to the Customer’s business].
15 Term and Termination
15.1
This Agreement shall commence on the Commencement Date for a (“Minimum term”) of 36 months and,
subject to termination in accordance with this clause 15, shall continue automatically thereafter for
successive annual periods.
15.2
This Agreement may be terminated by either Party:
15.2.1
15.3
with effect on the expiry of the Initial Term, upon giving at least 4 months’ prior written notice to the
other Party during the Initial Term;
This Agreement may be terminated immediately by either Party on written notice to the other Party, if the
other Party is in material breach of a obligation under this Agreement which breach is either not capable of
remedy or which is capable of remedy but which has not been remedied by the other Party within 30 days
after receipt of written notice to do so.
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15.4
15.5
This Agreement may be terminated immediately by either Party on written notice to the other Party:
15.4.1
if the other Party is dissolved or struck off the register of companies maintained by the Companies
Registration Office or a winding up order is made against the other Party or a meeting is convened,
resolution passed or any step taken by the other Party with a view to the winding-up of the other
Party except for the purpose of a solvent reconstruction, reorganisation, merger or consolidation;
15.4.2
if a receiver (including fixed charge or court appointed), administrative receiver, manager, insolvency
practitioner or similar officer shall be appointed over the whole or a substantial part of the
undertaking, property or assets of the other Party;
15.4.3
if the other party enters into (or proposes to enter into) a composition, scheme of arrangement or
voluntary arrangement with any of its creditors or otherwise or a moratorium is agreed imposed or
declared in respect of or affecting all or a material part of (or of a particular type of) the debts of the
other Party;
15.4.4
if notice of intention to appoint an administrator is given by any person (including the other Party’s
directors, the other Party or any qualifying floating charge holder as defined in the Insolvency Act
1986) or any step is taken by any person with a view to placing the other Party into administration
as defined by the Insolvency Act 1986; or
15.4.5
if any event or circumstance occurs which under the law of any relevant jurisdiction has an analogous
or equivalent effect to any of the events listed in the above sub-clauses in relation to the other Party.
For the purposes of this clause 15, a breach shall be considered capable of remedy if the Party in breach
can comply with the provision in question in all respects other than as to the time of performance (provided
that time of performance is not of the essence).
16 Consequences of Termination
16.1
Termination of this Agreement for any reason, whether under this clause 16 or not, shall be without
prejudice to the accrued rights of the Parties on the date of such termination.
16.2
Following the service of a notice of termination of this Agreement, the Company shall continue to be under
an obligation to provide the Services to the required Service Levels and to ensure that there is no
degradation in the standards of the Services until the date of such termination.
16.3
Upon termination of this Agreement (howsoever arising) the Company shall, within 30 days of the date of
such termination:
16.4
16.3.1
return to the Customer all materials and data, including Customer Data, in its possession that has
been provided to it by the Customer, or, if requested by the Customer, destroy the same and certify
in writing to the Customer that they have been destroyed. The Company shall also cause any copies
of such materials and data to be erased from its equipment and shall certify to the Customer that
the same has been done; and
16.3.2
Return all other Confidential Information of the Customer, or, if requested by the Customer, destroy
the same and certify in writing to the Customer that they have been destroyed.
16.3.3
Where return and or deletion of data is requested, the customer will bear all cost associated with
preparation and transport.
With effect from the date of termination of this Agreement, and for such period thereafter as the Customer
may reasonably request, the Company shall provide all reasonable assistance and co-operation to the
Customer and/or any Replacement Supplier in respect of the migration of the Services to the Customer or
such Replacement Supplier, including:
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16.4.1
if specifically requested by the Customer, an exit management and data migration plan;
16.4.2
the novation of any transferable contracts or sub-licensing of other agreements as required by the
Customer or the Replacement Supplier to facilitate the future provision of the Services; and
16.4.3
the provision of historical and technical data and Service desk logs in respect of the Services.
16.4.4
The company’s standard rates will apply
17 Notices
17.1
17.2
Any notice required to be given hereunder shall be in writing and signed by or on behalf of the Party giving
it, and may be sent by hand, by first class pre-paid post or recorded delivery or by facsimile transmission
(provided that a copy is also sent by recorded delivery within one Working Day of such transmission) to the
following addresses and numbers (or such other addresses or numbers as the relevant Party may from time
to time have notified the other Party for the purpose of this clause):
17.1.1
in the case of the Company:
Wanstor Limited
(Marked for attention of: Managing Director)
124-126 Borough High Street, London SE1 1LB
Facsimile: 0845 322 0500
17.1.2
in the case of the Customer:
XXXXX
Address
17.1.3
if delivered by hand, on the day of delivery;
17.1.4
if sent by first class pre-paid post or recorded delivery, two Working Days after posting, exclusive of
the day of posting;
17.1.5
if sent by facsimile, at the time of transmission unless sent after 17.00 in the place of receipt in which
case it shall be deemed to have been received on the next Working Day in the place of receipt
(provided that a copy has also been sent by post as set out in clause 17.1).
No notice given under this Agreement shall be validly served if sent by email or text messaging via mobile
phone.
18 Security and Integrity
18.1
The Company shall, in its provision of any parts of the Services which necessitate access to the Network or
Customer Data, comply with all reasonable notified security requirements and procedures of the Customer
from time to time and with Good Industry Practice.
18.2
The Company shall at all times ensure that the level of security employed by it throughout the term of this
Agreement is sufficient and appropriate to prevent (or to the extent not possible restrict in accordance with
Good Industry Practice) unauthorised access to, use of, or interference with Customer Data by any other
person, or unauthorised access to the Network by any other person.
18.3
If at any time the Customer undertakes or engages a third party to undertake a security review or audit of
the Customer’s information systems, the Company shall fully co-operate with the Customer and/or such
third party and shall (in consultation with the Customer) take into account and implement (or assist the
Customer in implementing) any measures, procedures or recommendations made by the Customer and/or
such third party pursuant to such review or audit.
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18.4
The Company shall in performing its obligations under this Agreement ensure that all software used by it
or by any sub-contractor will be:
18.4.1
currently supported versions of that software;
18.4.2
defect, and error free in all material respects; and
18.4.3
will perform in accordance with its specification;
and the Company shall use best endeavours, in accordance with Good Industry Practice, to ensure that it
does not introduce or permit or suffer attack by any Software Virus.
18.5
The Customer shall be responsible for ensuring that all programs, applications and operating environments
are of a release version or level which is compatible with the current level of hardware on which they are
operated, and are licensed for use by the Customer.
18.6
The Customer shall ensure that copies of all software are available on site in an appropriate format (e.g.,
CD-ROM, DVD).
19 Disaster Recovery and Business Continuity
19.1
The Company shall at all times maintain a documented disaster recovery and business continuity plan, which
shall be available to the Customer upon request, and which shall contain practical and technological
measures in accordance with Good Industry Practice to be taken by the Company in the event of a material
disruption to the provision of the Services (or in the event that the Company reasonably anticipates such a
disruption) and which are designed to mitigate the impact of such a disruption to business continuity.
19.2
The Company shall immediately notify the Customer in the event that it is required (for whatever reason)
to implement the plan referred to in clause 19.1.
19.3
If the Customer engages any third party to provide specialist disaster recovery services to it, the Company
shall co-operate and work with such third party and shall modify its disaster recovery and business
continuity plan accordingly.
20 Warranties
20.1
20.2
Each Party warrants and represents that, as at the date of this Agreement:
20.1.1
it has full capacity and authority to enter into and to perform this Agreement;
20.1.2
this Agreement is executed by a duly authorised representative of that Party; and
20.1.3
once duly executed this Agreement will constitute its legal, valid and binding obligations.
The Company undertakes, warrants and represents on an ongoing basis that:
20.2.1
the Services will be performed in accordance with the Service Levels;
20.2.2
its obligations under this Agreement will be performed by appropriate experienced, qualified, skilled,
competent, trained and efficient personnel to at least the same standard expected of experienced,
qualified, skilled, competent, trained and efficient providers of services similar to the Services using
all due skill and care and in accordance with Good Industry Practice;
20.2.3
all subcontractors and the Company’s employees will be adequately supervised;
20.2.4
all personnel used to provide the Services will be vetted in accordance with Good Industry Practice;
20.2.5
it will perform its obligations under this Agreement in compliance with all applicable laws,
enactments, orders, regulations, guidance and in accordance with Good Industry Practice;
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20.3
20.2.6
there is no litigation (whether past or ongoing), actions, suits or proceedings or regulatory
investigations pending or, to the Company’s knowledge, threatened against or affecting the
Company before any court or administrative body or arbitration tribunal, nor any contract with a
third party, which would prevent the performance of its obligations under this Agreement; and
20.2.7
it has and will continue to have all necessary rights in and to all software and other materials made
available by the Company and/or any of its sub-contractors to the Customer pursuant to this
Agreement or which are used or required for use by the Company in order to perform its obligations
under this Agreement.
Save as expressly provided in the Agreement no statutory or other warranty, condition or representation of
any kind whatsoever on the part of the Company is given or to be implied by this Agreement.
21 Supply of Equipment
21.1
This clause 21 shall apply in the event that, at the Customer’s request, the Company supplies or procures
the supply of any item of equipment, hardware or devices to the Customer.
21.2
The Company shall provide a fixed quote for the cost of any item of equipment, hardware or devices to be
purchased by the Customer, which shall include all associated costs, including delivery, packaging,
insurance, shipping and all applicable taxes and duties, together with a proposed delivery date. The
Customer shall be under no obligation to accept any such quote.
21.3
Payment for any such item of equipment supplied by the Company shall be due within 30 days of the date
of delivery, subject to receipt of invoice from the Company and in the absence of any bona fide query by
the Customer. The date of delivery of each such item of equipment shall be of the essence of this
Agreement
21.4
Title in and to any item of equipment, hardware or devices shall pass to the Customer upon delivery to the
Customer.
21.5
The Customer will inspect all equipment supplied as soon as possible following delivery and shall use all
reasonable endeavours to notify the Company in writing of all faults as soon as reasonably possible
following delivery.
21.6
The Company will only supply and use as part of the Services equipment and materials within the scope of
the published specifications from appropriate manufacturers and suppliers, but such equipment and
materials are supplied subject to any conditions of sale relating thereto by the relevant manufacturer or
supplier.
22 Insurance
22.1
The Company shall at all times during this Agreement and for a period of three years thereafter, at its own
cost, maintain a comprehensive policy or policies of insurance which shall provide cost in an amount or
amounts at least equal to its aggregate liabilities under this Agreement.
23 Indemnity
23.1
The Company shall indemnify and keep indemnified the Customer and all Affiliates of the Customer for all
Losses arising due to personal injury or death caused by the negligence of the Company or its employees,
agents or sub-contractors.
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23.2
The Company shall indemnify and keep indemnified the Customer and all Affiliates of the Customer for all
Losses to tangible property of the Customer caused by the negligence or wilful default of the Company or
its employees, agents or sub-contractors in the provision of the Services or by the breach by the Company
of its contractual obligations arising under this Agreement.
23.3
The Company shall indemnify and keep indemnified the Customer and all Affiliates of the Customer in
respect of all Losses suffered or incurred by the Customer or any Affiliate in connection with any claim or
action by any third party that the use or benefit of the Services or any software provided by the Company
infringes the Intellectual Property of that third party.
23.4
A Party giving an indemnity under this Agreement shall be liable to make payment under the indemnity on
demand from the time when the liability being indemnified is incurred by the other Party, whether or not
the other Party has satisfied or discharged the liability.
24 Liability
24.1
Neither Party limits its liability:
24.1.1
for fraud by it or its employees, including any fraudulent misrepresentation;
24.1.2
for any matter which liability cannot be lawfully restricted;
24.1.3
in respect of the indemnity contained in clause 23.3; or
24.1.4
for death or personal injury caused by its negligence or that of its employees, agents or subcontractors (as applicable).
24.2
Subject to clauses 24.1 and 24.3, the total liability of either party in any Contract Year shall not exceed 50%
of the total amount of Charges payable or due (whether or not paid) under this Agreement in that Contract
Year.
24.3
Subject to clauses 24.1 and 24.4, neither Party shall be liable to the other Party for any loss of anticipated
profits, loss of reputation or goodwill, loss of expected future business or any indirect or consequential loss,
in each case whether arising from negligence, breach of contract or otherwise.
24.4
The provisions of clause 24.3 shall not limit the Customer’s right (without prejudice to any other right or
remedy available to the Customer under this Agreement or at law) to recover for:
24.4.1
additional and/or administrative costs and expenses (including additional costs to maintain the
Equipment) incurred by the Customer arising from a Services Failure or other breach or default by
the Company of its obligations under this Agreement;
24.4.2
the cost of procuring replacement services where the Customer has terminated in accordance with
clauses 15.3, 15.4 or 15.5.
24.4.3
loss of or corruption to the Customer Data including costs of rectification of Customer Data; or
24.4.4
any regulatory losses, fines, expenses or other losses arising from any breach by the Company or its
employees, agents or sub-contractors of any law or regulation;
Irrespective of whether such losses, cost or other damages suffered or incurred by the Customer are direct,
indirect or consequential or could reasonably have been foreseen as at the date of execution of this
Agreement.
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25 Dispute Resolution
25.1
Any question, dispute or difference which may at any time arise between the Parties concerning the
provisions of this Agreement or the effect thereof or the rights and duties of the Parties or any other matter
or thing arising under or in connection with this Agreement (a “Dispute”) shall in the first instance, and
(subject to clause 25.2) prior to the issue of any proceedings by either Party, be referred in writing by either
Party to the other Party for resolution by their respective day-to-day contract representatives. If the Dispute
has not been resolved by such representatives within 15 Working Days after it has been so referred, the
Dispute shall be escalated by direct reference to the Managing Director of the Company and the Operations
Director of the Customer who shall use all reasonable endeavours to resolve the Dispute as soon as possible
within a further 15 Working Days.
25.2
This clause 25 shall not preclude or restrict either Party from seeking any interim or injunctive relief in
relation to any Dispute.
25.3
Notwithstanding any Dispute, the Company shall continue to provide the Services in accordance with this
Agreement until resolution of such Dispute.
26 Law and Jurisdiction
26.1
The validity, construction and performance of this agreement shall be governed by the law of England, and
the Parties irrevocably submit to the exclusive jurisdiction of the English courts.
27 Severability
27.1
If any clause(s) or sub-clause(s) of this Agreement shall be deemed or held to be unreasonable within the
meaning of the Unfair Contract Terms Act 1977 or otherwise deemed or held to be illegal, invalid or
unenforceable, then such clause(s) or sub-clause(s) as the case may be shall be deemed to be a severable
part of this Agreement and the remaining provisions of this Agreement shall so far as possible remain fully
effective; and the Parties shall promptly negotiate in good faith to modify any such provisions so that to
the greatest extent possible they achieve the same effect as would have been achieved by the invalid or
unenforceable provisions.
28 Confidentiality
28.1
All Confidential Information shall be kept strictly confidential by the receiving Party, subject to clause 28.3,
and such disclosure shall not imply transfer of any property or rights protecting the same to the receiving
Party.
28.2
Each Party shall:
28.2.1
use the Confidential Information of the other Party disclosed to it (by whoever disclosed) only for the
proper performance of its duties under this Agreement;
28.2.2
not without the disclosing Party’s written consent disclose or permit the disclosure of the Confidential
Information disclosed to it;
28.2.3
only make such Records as are strictly necessary for the proper performance of its duties under this
Agreement and clearly mark all Records as confidential;
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28.2.4
take all necessary and proper security precautions (and at least as great as those it takes to safeguard
its own confidential information) to safeguard every part of the Confidential Information to prevent
it from being disclosed or otherwise made available to any third party except as permitted by this
Agreement, and
28.2.5
without keeping any copies (except that one copy may be kept solely for archive purposes), delete
or deliver to the disclosing Party, within three (3) days of receipt of a request to do so made at any
time, all Records.
28.3
The receiving Party may disclose Confidential Information of the disclosing Party to those of its employees,
officers and professional advisers who need to have access to it for the proper performance of its duties
under this Agreement, provided that before disclosure is made, the receiving Party shall have obtained from
such employees, officers and professional advisers binding obligations of confidence no less onerous than
those set out in this Agreement. The receiving Party undertakes to enforce such undertakings to be
responsible for breaches of the undertakings by such persons.
28.4
The provisions of clause 28.2 shall not apply to Confidential Information that:
28.5
28.4.1
the receiving Party can show was known to the receiving Party or in its possession before that
information was acquired from the disclosing Party;
28.4.2
is in or enters the public domain through no wrongful default of the receiving Party or any person
on its behalf, provided that this clause 28.4.2 shall only apply from the date that the relevant
Confidential Information enters the public domain;
28.4.3
the receiving Party receives from a third party without similar obligations of confidence in
circumstances where the third party did not obtain that information as a result of a breach of an
obligation of confidence; or
28.4.4
is required to be disclosed by any applicable law or by order of any court of competent jurisdiction
or any government body, agency or regulatory body, provided that the receiving Party shall use all
reasonable endeavours:
a to give the other Party as much written notice of the disclosure as it reasonably can to enable
the other Party to seek a protective order or other action protecting the Confidential
Information from disclosure:
b to furnish only that portion of the Confidential Information that it is legally obliged to disclose;
and
c to consult with the other Party with a view to agreeing the timing and content of any such
disclosure.
The receiving Party shall notify the disclosing Party promptly if it becomes aware that any of the Confidential
Information falls within the provisions of clause 28.4.
29 Reporting and Audit Rights
29.1
Each Party shall appoint a named contract representative who shall meet periodically, at such time and at
such location as may be agreed, to discuss the provision of the Services.
29.2
The Company shall provide monthly reports to the Customer on or around the first Working Day of each
month. Each such monthly report shall contain details, relating to the immediately preceding month, of:
29.2.1
the volume and seriousness of Service desk calls logged by the Customer;
29.2.2
the performance of the Company in resolving Service desk incidents and requests;
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29.2.3
any issues arising from or expected to arise in relation to the capacity, stability, functionality or
performance of the Network or Equipment;
29.2.4
any on-site support or maintenance provided by the Company;
29.2.5
any problems or issues in the Network or Equipment reported or experienced;
29.2.6
Network monitoring and status;
29.2.7
any disaster recovery testing carried out by the Company on the Network;
29.2.8
any other material matters arising in respect of the Services; and
29.2.9
such other matters or information as agreed between the Parties from time to time.
29.3
The Customer and its authorised representatives shall have the right, not more than once in any Contract
Year, during normal business hours and upon giving at least 10 Working Days’ notice, to inspect the
Company’s records, data and documentation as may be required to verify the Company’s compliance with
its obligations under this Agreement. The Customer shall also be permitted to take copies and extracts. The
Customer shall use its reasonable endeavours to ensure that the conduct of each audit does not
unreasonably disrupt the Company’s business activities or delay the provision of the Services.
29.4
The Company shall upon request of the Customer provide the Customer (and/or its agents or
representatives) with all reasonable co-operation and assistance in relation to each such audit, including all
information requested by the Customer within the permitted scope of the audit; and reasonable access to
any sites controlled by the Company.
29.5
The Parties agree that they shall bear their own respective costs and expenses incurred in respect of
compliance with their obligations under this clause, unless the audit identifies a material default by the
Company in which case the Company shall reimburse the Customer for all the Customer’s reasonable direct
costs incurred in the course of the audit.
29.6
If an audit identifies that:
29.7
29.6.1
the Company has failed to perform its obligations under this Agreement in any material manner, the
Parties shall agree and the Company shall thereafter implement a remedial plan; and
29.6.2
the Customer has overpaid any Charges or been under-credited for any Service Credits, the Company
shall pay to the Customer the amount overpaid or under-credited within 15 Working Days.
The provisions of this clause shall survive the termination of this Agreement for a period of one year.
30 Intellectual Property, Customer Data and Data Protection
30.1
All Intellectual Property belonging to a Party prior to the Commencement Date shall remain vested in that
Party.
30.2
If pursuant to this Agreement the Company provides any software, works, materials or other subject matter
(collectively “Works”) which is protected by Intellectual Property to the Customer:
30.2.1
30.3
if such Works are owned by the Company, the Company shall grant and hereby grants (warranting
that it is entitled to do so) a non-exclusive royalty-free world-wide irrevocable perpetual licence to
use, copy and distribute such Works for its internal business purposes, with the right to sub-license
such rights to any third party provider or Affiliate.
The Company acknowledges and agrees that the Customer Data is the property of the Customer and the
Customer reserves all Intellectual Property which may subsist in the Customer Data.
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30.4
The Company shall not (and shall procure that its sub-contractors and employees shall not) store, copy or
use the Customer Data for any purpose other than to the extent necessary to perform its obligations under
this Agreement and shall not disclose it to any third party without the prior approval of the Customer,
except where required to do so by a regulatory body or by law other than to the extent necessary to perform
its obligation under this Agreement. The Company shall only store or otherwise possess or hold Customer
Data for so long as required for the performance of its obligations under this Agreement, following which
(or in any event upon termination or expiry of this Agreement) the Company shall return all such Customer
Data to the Customer or (at the Customer’s option) destroy it.
30.5
Each Party warrants that it is properly notified under the Data Protection Act 1998 to the extent required
for the processing of Personal Data required in the performance of this Agreement.
30.6
Each Party hereby agrees to comply with the relevant provisions of the Data Protection Act 1998 and all
other applicable laws and regulations, official guidance and codes of practice relating to the processing of
personal data and privacy, and any directions issued by the Information Commissioner, in its processing of
any Personal Data.
30.7
Where the Company Processes any Personal Data, the Company shall:
30.7.1
Process such data solely in accordance with the Customer’s instructions from time to time as required
in order to comply with its obligations under this Agreement;
30.7.2
comply with the seventh data protection principle set out in Schedule 1 of the Data Protection Act
1998 as though it were Data Controller; and
30.7.3
not Process any Personal Data outside the European Economic Area without the prior written consent
of the Customer and, where the Customer consents to a transfer, comply with the obligations of a
Data Controller under the eighth data protection principle set out in Schedule 1 of the Data
Protection Act 1998 in respect of such Personal Data.
31 Announcements
31.1
The Parties agree to keep confidential the terms of this Agreement, and neither Party shall make any
announcement in relation to this Agreement or otherwise publicise its existence or its contents or use or
refer to the name, trade mark or trade name of the other Party in any disclosure without the prior written
consent of the other Party such consent not to be unreasonably withheld or delayed. A Party shall be
entitled to withhold such consent and shall be under no obligation to provide any explanation for such
action.
32 Waivers and Remedies
32.1
32.2
Except as otherwise stated in this Agreement, the rights and remedies of each Party under this Agreement:
32.1.1
are in addition to and not exclusive of any other rights or remedies under this Agreement or the
general law; and
32.1.2
may be waived only in writing and specifically.
Delay in exercising or non-exercise of any right under this Agreement is not a waiver of that or any other
right, partial exercise of any right under this Agreement and shall not preclude any further or other exercise
of that right or any other right under this Agreement and waiver of a breach of any term of this Agreement
shall not operate as a waiver of breach of any other term or any subsequent breach of that term.
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33 No Partnership/Agency
33.1
Nothing in this Agreement is intended to or shall operate to create a partnership or joint venture of any
kind between the Parties, or to authorise either Party to act as agent for the other.
34 Counterparts
34.1
This Agreement may be executed in any number of counterparts, all of which taken together will constitute
one and the same agreement, and either Party may enter into this Agreement by executing a
counterpart.Schedule
35 Service Levels Targets
Helpdesk service levels
Response
Priority
Response Time Service Level
A
B
C
D
Service Threshold
Average % of Responses across
all incidents in each Quarter
30 minutes
120 minutes
4 hours
8 hours
Service Credit
% of Charge payable in relevant
Quarter
85%
5%
Service Threshold
Average % of Resolutions across
all incidents in each Quarter
Service Credit
% of Charge payable in relevant
Quarter
85%
5%
Resolution
Priority
Resolution Time Service Level
A
B
C
D
A
4 hours
4 hours
8 hours
10 days
Service level definitions
“Priority A”
“Priority B”
"Priority C”
a network or central incident or problem (or series of connected incidents or problems) which is affecting
more than 10 users, or an entire business unit, for which there is no workaround or resiliency or which
has a severe impact upon the availability of operation of the Network;
e.g. server hardware/software problems
network/hub failure
A failure impacting a company director or other senior member of staff may be allocated a discretionary
“A” Priority response
a local incident or problem (or series of connected incidents or problems) which renders a single user’s
PC unusable or materially impacts on its functionality
e.g. hard drive failure with no other PC to use
operating system problem with no other PC to use
user profile issues and creation
unable to print
a single incident or problem (or series of connected incidents or problems) that requires attention but
does not prevent the user from accessing their PC or any software applications installed on it or which
can be used from it
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e.g.
“Priority D”
“Response Time”
“Resolution Time”
“Service Threshold”
PC education and advice
general software issues and queries
a single incident or problem that is not a fault and therefore does not prevent the user from working, but
is a request for change
e.g.
procurement of hardware/software
office move
the length of time taken between logging the Notified Fault and receiving a substantive response (i.e. not
a holding reply) from the Company, whether by telephone or email, in relation to that Notified Fault;
the length of time taken between logging the Notified Fault and rectifying or remedying the fault,
whether by patch, work-around, by repairing or replacing any Equipment, or otherwise;
the proportion of responses or resolutions which are within the relevant Service Level, expressed as a
percentage of the total responses or resolutions;
B
Service level operation
1.
The Service desk response and resolution times set out above are times within the normal hours of operation of the
Service desk Services outlined in schedule 1.
The resolution times set out above shall also apply to the resolution of Notified Faults for which the Equipment
Maintenance Service is required or requested.
However in relation to any “Priority A” Notified Fault which is notified during normal hours of operation of the Service
desk Service, the Company shall thereafter provide assistance in an attempt to resolve the Notified Fault continuously
(whether or not during normal hours of operation) until the Notified Fault is resolved or downgraded (by agreement
with the Customer) to “Priority B”.
The Customer may notify the Company of any business critical “Priority A" fault, incident or problem outside of the
normal Service desk Service hours, by telephone on an emergency number as advised by the Company from time to
time. In this event the Company shall respond to such fault, incident or problem within four hours (whether or not
during normal hours of operation of the Service desk Service).
In relation to Equipment, a Notified Fault shall be deemed to have been resolved when the faulty Equipment has been
repaired or replaced such that the performance and functionality is the same as or better than that prior to the fault
occurring. Other than in relation to Equipment, a Notified Fault shall be deemed to have been resolved when:
(a)
the Customer has received information on how to obtain a solution for resolving the Notified Fault , in
circumstances in which the Customer is able to resolve the problem;
(b)
the Customer has been advised that the problem is caused by a known but unresolved bug;
(c)
the Customer has been advised that the problem is caused due to the nature or specification of hardware used
by the Customer (e.g. capacity shortage);
(d)
the Customer has been advised that the problem has been corrected by a subsequent release of software;
(e)
the Notified Fault has been escalated to the vendor (in the case of third party software) and the Company has
provided and implemented the response from such vendor;
(f)
the Customer has been advised that the problem is outside the published specification in the software
technical documentation; or
(g)
the Customer has been advised that the problem is due to software or equipment used by the Customer but
2.
3.
4.
5.
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