A. AAG is willing to provide the Services to the Client and the parties agreed to enter into such a relationship on the terms and conditions hereinafter contained .
B. The commencement date of this Agreement shall be when the Client engages with AAG by either accepting an agreed Service Agreement or by signing to acknowledge hereunder.
WHERE BY IT IS AGREED:
1. DEFINITIONS AND INTERPRETATION
1.1. In this Agreement, the following expressions shall have the following meanings:
“Contract Period” The initial term of this Agreement as specified in the Order which may be extended or terminated in accordance with the provisions of this Agreement.
“Fault” Any fault which results in the Services (or any part of them) becoming entirely unavailable to the Client for any period of time.
“Fees” The fees (including any VAT) due for the provision of the Services as calculated in accordance with the Price.
“Intellectual Property Rights” Copyrights, patents, domain names, database rights, registered and unregistered design rights, topography rights, trademarks and service marks and applications for any of the foregoing, together with all trade secrets, know-how, rights to confidence and other intellectual and industrial property rights in all parts of the world.
“Material” Text, graphics, images, sound, video or any combination thereof.
“Order” An order on the electronic form provided by AAG to and agreed by the Client indicating which Services and any instructions it requires and its agreement to these terms and conditions governing such provision and which has been accepted by AAG in a written acknowledgement sent to the Client.
“Planned Outage” A scheduled period during which AAG or any other third party is carrying out any upgrade, repair and/or maintenance work to its systems and/or network and which will result in the Services (or any part of them) being temporarily unavailable to the Client.
“Price” The price for the Services quoted in writing to the Client by AAG.
“Relevant Legislation” Laws relating to data protection and any laws governing the Services
“Services” The Services identified on a Service Agreement/Order to be provided by AAG to the Client pursuant to this Agreement and any other Services which AAG agrees to provide to the Client from time to time.
“Software” Any Software made available by AAG or its 3rd Party Provider to the Client in connection with the provision of the Services.
“AAG Internet’s Website” The Website located at www.aag-it.com
1.2. A reference to writing or written includes emails and letters addressed to AAG.
2. SERVICES AND PAYMENT
2.1. In consideration of the payment of the Service Fees in accordance with the Price stated on the agreed Service Agreement by both AAG and the Client, AAG agrees to provide the Services upon and subject to the terms of this agreement and any other Service related terms that formed part of the agreed Service Agreement.
2.2. For the purposes of this agreement, time of payment is of the essence to the Services being supplied and active.
2.3. AAG or its 3rd Party Provider will configure the Service and conduct a set of internal standard commissioning tests to ensure that the configuration of the Services are functioning correctly. The Service Start Date for the Service occurs on successful completion of the tests. The Client will be required to notify AAG or its 3rd Party Provider (set out in clause 6.9 reporting a fault) within 48 hours of the Service Start Date should they experience any difficulties with the service. After this date, all faults should be reported as per the standard SLA set out in clause 6.
2.4. As part of AAG IT Services Ltd credit management procedures, AAG may:
2.4.1. require the Client to pay for Services whether in full or as a deposit upon receipt of the invoice and therefore in advance of the Service start date or activation. Ways to pay are referred to in clause 2.7.
2.4.2. allocate a credit limit value in pound sterling to the Client account, this amount is set and agreed by AAG. The Client agrees to provide AAG with any information reasonably required for this purpose.
2.5. AAG will invoice the Client for recurring Services in advance.
2.6. AAG will invoice the Client in pound sterling for Services and the Client agrees to pay the invoice before the end of the following month in which the invoice is raised (Net Monthly Accounting) unless otherwise specified on the Order.
2.7. Client payments will be made by Direct Debit, or any other method of payment agreed in writing by AAG. All Client payments must be supported at the time of payment by a remittance advice listing the invoice numbers that are being paid or credit notes being taken to ensure that both the AAG ledger and Client account ledger match.
2.8. AAG uses the Direct Debit payment facility to collect monies owed to them in respect of invoices raised by them for credit account Clients. The Client will sign to agree Direct Debit terms and conditions using their correct company bank account, and AAG will automatically take payments from this bank account on a net monthly basis as referred to in clause 2.6. AAG will comply with the standard Direct Debit banking requirement by sending the invoice to the Client, clearly displaying the date of thereabouts that the payments will be collected by the Direct Debit. The Client agrees to check the invoice details in advance of the payment being collected and to contact AAG immediately, in writing by e-mail to [email protected] or by post should the details which includes values not be correct.
2.9. The Client must report any invoice queries within 7 working days from receipt of the invoice in question to the accounts department of AAG either by e-mail to [email protected] or by post. If after 7 working days from invoice being sent out no queries are received, then it will be deemed by both parties that the invoice content is correct and the invoice will be due for payment in full.
2.10. Errors and/or omissions made by either AAG or the Client must be reported to either party in writing via e-mail or post as soon as they are noticed, and corrected. There are no limits to the length of time that AAG accounts department take to issue invoices to the Client for payment, and therefore any delays do not give any grounds for non-payment by the Client.
2.11. It is also understood and agreed that any query regarding any error and/or omission in respect of part of an invoice will not delay payment on the rest of the outstanding invoice, and therefore the Client will make a part payment until the agreed part invoice query has been rectified.
2.12. Non-Payment or Breach of this Agreement
2.12.1. If the Client fails to pay any AAG invoice which is due and payable under this Agreement, AAG shall be entitled to charge interest on a daily basis on the overdue amount from the date of such failure until payment is made in full (both before and after judgement if applicable) at an annual rate of eight per cent (8%) above the Bank of England base rate at the time of being enforced under the Late Payment of Commercial Debts (Interest) Act 1998.
2.12.2. If the Client fails to pay in full any invoice due as referred to in clauses 2.6 or breaches the terms of this Agreement, then AAG withholds the right to suspend the Services provided by giving 7 days’ written notice by e-mail or post and apply a suspended Service charge no greater than 10% of the annual Service charge. The suspended Services will not be re-activated until payment of all outstanding invoices including suspension charges applied have been paid in full. Any additional charges incurred to AAG by any third-party due to suspension action will be passed on to the Client with an additional 10% administration fee. AAG will not be responsible for any liability or costs incurred by the Client due to suspension action being taken.
2.12.3. AAG will take court action against the Client for non-payment of any outstanding invoices within the terms of this agreement using either the “money claim online” Government system or application to the court. Reasonable costs involved will be passed on to the Client for payment as set out in the Governments Late Payments of Commercial Debts Regulations. After judgement, if the Client fails to pay the awarded amounts then AAG will request further action to the court to recover the debts and costs using the Court Bailiff System.
2.12.4. AAG reserves the rights to inform and update credit agencies with regard to any Client who fails to satisfy the terms and conditions as set out in this agreement with particular reference to non-payment of accounts. Such “credit reporting” may subsequently affect the Client credit rating and scoring in future credit applications.
2.13. Non-delivery or non-performance of Services by any third-party other than AAG’s sub-contractors shall not give the Client any right to delay or dispute any payment to AAG or to make any claim whatsoever against AAG.
2.14. AAG shall be entitled to increase the Fees by giving not less than thirty (30) days’ written notice to the Client in the event that AAG’s cost of providing the Services is increased due to increases in rent, rates, taxes, service charges and/or utilities, and/or as a result of a change in applicable laws.
2.15. Client agrees to pay for delivery and storage Services provided by AAG which will be charged at either third-party cost-plus administration fee of 10%, and/or AAG’s resource costs. In all cases Client must in advance of this Service requirement agree with a AAG Order.
3.1. Client hereby agrees to fully indemnify, keep indemnified and hold harmless AAG, its officers, employees, agents, sub-contractors and affiliated companies from and against any and all costs, claims, losses, damages and expenses (including, but not limited to, legal fees) sustained or incurred by AAG and/or any of its officers, employees, agents, sub-contractors or affiliated companies directly or indirectly and in any jurisdiction as a result of:
3.1.1. any breach of any of the warranties given by the Client in this Agreement;
3.1.2. otherwise howsoever arising out of the provision by AAG of any Service hereunder unless on account of breach of contract or negligence by AAG; and/or
3.1.3. any breach by the Client of any of its obligations in this Agreement.
4. SERVICE OBLIGATION, WARRANTIES AND LIABILITY
4.1. AAG shall not be liable for any interruptions to the Services or outages arising directly or indirectly from:
4.1.1. interruptions to the flow of data to or from the internet;
4.1.2. changes, updates or repairs to the network or software which it uses as a platform to provide the Services subject to AAG using reasonable endeavours to minimise the interruptions/outages that may be caused by such change;
4.1.3. the effects of the failure or interruption of services provided by third parties;
4.1.4. any actions or omissions of Client (including, without limitation, breach of Client’s obligations set out in the Agreement) or any third parties;
4.1.5. problems with Client’s equipment and/or third-party equipment;
4.1.6. Client requested interruptions to the Services.
4.2. AAG will not be liable for any indirect loss, consequential loss, loss of profit, revenue, data or goodwill howsoever arising suffered by the Client or for any wasted management time, failure to make anticipated savings or liability of the Client to any third party arising in any way in connection with this Agreement or otherwise whether or not such loss has been discussed by the parties pre-contract or for any account for profit, costs or expenses arising from such damage or loss.
4.3. AAG will use reasonable endeavours to provide a prompt and continual service, but will not be liable for any loss of data or service resulting from delays, non-deliveries, missed deliveries, or service interruptions caused by errors or omissions of the Client.
4.4. Save as expressly stated in this Agreement, all conditions and warranties whether express or implied, statutory or otherwise, in relation to any products and/or Services provided by AAG are hereby expressly excluded to the fullest extent permitted by law.
4.5. The transmission, storage, viewing and retrieval of data and files through the World Wide Web are subject to a variety of conditions that make such transmission, storage, viewing and retrieval potentially unreliable. Accordingly, the Client’s use of the Client’s account and the Services is at the Client’s sole risk. The Client’s account and the Services are provided to the Client on an “As is” and “As available” basis.
4.6. AAG makes no representation or warranty that:
4.6.1. the Client’s account or the Services will meet the Client’s needs and/or will be compatible with the Client’s hardware and/or software systems;
4.6.2. access to the Client’s account or the Services will be timely, error-free, uninterrupted, virus-free or secure;
4.6.3. the data and files the Client stores in the Client’s account will not be lost or damaged;
4.6.4. the data on the Client’s desktop or server will not be lost or damaged; or
4.6.5. defects in the Services will be corrected.
4.6.6. errors or omissions with domain registrations
4.7. The Client acknowledges that its retrieval of any material or data through the use of the Services is effected at the Client’s choice and risk and that the Client will be solely responsible for any damage to the Client’s computer system or loss of data that results from the retrieval of such material or data.
4.8. No matter how many claims are made and whatever the basis of such claims, AAG’s maximum aggregate liability to the Client under or in connection with this Agreement, or any other agreement between the parties, or any software related to this Agreement, in respect of any direct loss (or any other loss to the extent that such loss is not excluded by the provisions of this clause 4 or otherwise) whether such claim arises in contract or in tort shall not exceed a sum equal to the amount of the monthly value or Fee paid by the Client for the Services.
4.9. The Client agrees that it is in a better position to foresee and evaluate any loss it may suffer in connection with this Agreement and that the Fees have been calculated on the basis of the limitations and exclusions in this Clause 4 and that the Client will affect insurance as is suitable having regard to its particular circumstances and the terms of this Clause 4.
4.10. Nothing in this Agreement shall apply so as to restrict liability for death or personal injury resulting from the negligence of AAG or its appointed agents or for fraud or fraudulent misrepresentation.
4.11. AAG excludes any warranty as to the quality or accuracy of information received through the Services.
4.12. The Client acknowledges that where the Services include the provision of third party Services or products by AAG, such products and/or services as stated on the Client Order may be subject to further specific terms and conditions which accordingly the Client accepts and warrants that it will comply with such terms and conditions.
4.13. The Client further acknowledges that it is solely responsible for the use of its AAG allocated system account including but not limited to login-in, password and user details, and accordingly shall be responsible for all costs, telephone call charges, data usage charges, expenses and claims. Whether by the Client or otherwise, it is the Client’s responsibility to ensure that it maintains the security of its users and access to the AAG allocated system account which includes and is referred to in clause 7.
4.14. The Client will be liable for any loses or charges incurred as a result of unauthorised use of the Services or system including fraud, theft or misuse.
4.15. The Client must provide and maintain adequate insurance cover for its business needs and risks in relation to the Services provided by AAG including any on-site equipment which is part of the AAG or its 3rd Party Providers Service. In addition to include but not limited to Clients equipment and personal within AAG’s premises or sites, goods or equipment in transit, cybercrime, theft, fraud, hacking or any forms of cyber-attacks, and any financial loss or interruption to business through none performance of the AAG or its 3rd Party Providers Service after any SLA Service credits referred to in clause 6.
4.16. If the Services include any Services which are subject to the Phone-paid Services Authority, then the Client warrants that it is fully aware and familiar with all applicable requirements of the Phone-paid Services Authority Code of Practice and shall fully comply with all of its obligations under the same and will also comply with any directions which Phone-paid Services Authority may make from time to time. The Client further warrants that no sanction has been imposed on it by Phone-paid Services Authority which may prevent AAG or its 3rd Party from providing related Services.
4.17. AAG shall be entitled to terminate the type of Service referred to in clause 4.14 above in the event that Phone-paid Services Authority directs it to do so or in order to prevent any breach of the Phone-paid Services Authority Code of Practice.
5. DOMAIN REGISTRATION SERVICE
5.1. AAG Domain Registration Service is as per the agreed Client Order, and AAG is administrating the Service on behalf of the Client with their authorisation.
5.2. Client accepts and warrants that it will comply with all Domain Registrars terms and conditions which can be provided upon request and the information provided to AAG is accurate and complete without any forms of errors or omissions.
5.3. AAG will automatically renew Client Domains on their behalf unless the Client gives 30 days’ cancellation written notice prior to the renewal date of the domain, such written notice must be e-mailed to [email protected] or via post from the authorised Client contact. The Client agrees for AAG to renew the domain by the renewal date and pay for this Service.
6. SERVICE LEVEL AGREEMENT (SLA)
6.1. Service Availability: The Services shall be made available with an average uptime of 99.95% measured over a 12-month period, excluding all and any time when Planned Outages take place (Uptime). This Uptime level is not applicable to any broadband services provided by AAG or its 3rd Party Providers and is always subject to the exclusions and limitations set out in clause 4.
6.2. AAG technical support operates from 08.30 to 17.30 Monday to Friday excluding bank holidays. Critical server and network support is available at all times. (subject to the terms of this Agreement) for the management and restoration of Service. AAG targets to respond to Faults within 1 hour of notification by the Client and restoration of Service within a target time of 4 hours after diagnostics (Service Targets).
6.3. Failure to meet the above Service Targets shall entitle the Client to claim a Service credit on a pro rata basis at the rate of 1 day’s rental refund per hour of downtime (being cumulative continuous time during which a Fault continues to render the Service at Fault).
6.4. Service Credit claims must be submitted in writing to AAG within 3 working days of the event (not including bank holidays or public holidays).
6.5. You agree that Service credits shall be your sole and exclusive remedy for failure to meet the agreed Service Targets.
6.6. Whilst AAG’s 3rd Party Provider continuously monitors all elements in its network and can therefore detect Service failures, and calculate availability, from its own network management systems. For the avoidance of doubt, the Client will still be required to notify AAG should they experience any difficulties with any Services.
6.7.1. If engineering work reveals that there is no Fault with the Service, the Fault is a Planned Outage or the Fault is an outage resulting from any of the circumstances referred to in clause 4.1, AAG or its 3rd Party Provider reserves the rights to charge engineering Fees to cover any costs.
6.7.2. Where the Client has agreed an appointment with AAG or its third party for work at a Clients site, if the engineer is unable to carry out the work at, or gain access to such site it will be deemed a missed appointment. AAG reserves the right to raise a missed appointment charge.
6.8.1. In order to ensure compliance with its obligations under this agreement regarding any part of the Services, AAG and its suppliers may carry out preventative maintenance from time to time anywhere on its network. Such preventative maintenance shall be categorised as follows:
6.8.2. Emergency Maintenance: any preventative maintenance which, in AAG or its 3rd Party Providers reasonable opinion, is necessary to arrange or procure or otherwise act upon in an emergency for any reason. AAG shall give the Client 24 hours’ prior written notice of the time window in which the Emergency Maintenance shall be carried out. In some cases, a shorter notification window maybe required in order for AAG’s 3rd Party Provider to maintain service levels.
6.8.3. All notices provided detailed above will include brief description of the work, date/time, estimated duration of the work required and impact of the Client Service.
6.8.4. Such notice will be sent to the nominated account contact and associated partner (if assigned) via e-mail. In the case of an emergency, we may give you a shorter notice by way of a telephone call.
6.8.5. In the event that there is a Service Level Failure i) due to Routine Maintenance or ii) Low-risk Maintenance, Service Credits may be available in accordance with this agreement. Service Credits are not applicable to Scheduled Maintenance or Emergency Maintenance.
6.9. Reporting a Fault
6.9.1. The Client must comply with any Fault reporting format as advised by AAG. This includes carrying out our specified pre-check instructions including any required documentation.
6.9.2. For the avoidance of doubt, if there is a dispute on any Fault commencement or duration, the times recorded on the AAG;s 3rd Party Providers fault system shall be final.
6.9.3. Any Faults or suspected Faults on the Services must be reported to AAG Service Desk on 0114 3030 266 or e-mail [email protected]
6.9.4. The Client must provide reasonable assistance when required or information is reasonably requested by AAG or its 3rd Party Provider from the Client, End User or a third party and such assistance or information is provided in a timely fashion.
6.10. Fault Escalation
6.10.1. Fault escalation procedures can be invoked in the following situations:-
126.96.36.199. where a Fault condition is serious enough to cause significant impact to the Client, or presents a significant threat to the services provided by AAG or its 3rd Party Provider.
188.8.131.52. if a reported Fault exceeds the target time for fix.
184.108.40.206. all Fault escalation requests must clearly state the reasons and be recorded by both parties. AAG or its 3rd Party Provider will review the escalation request, advising Client accordingly. AAG or its 3rd Party Provider reserve the right to downgrade any escalation that does not meet these requirements.
7. ACCEPTABLE USE POLICY (AUP)
7.1. The Client acknowledges that AAG has an Acceptable Use Policy (AUP) which is available at https://www.aag-it.com/legal and the Client agrees and accepts that such AUP forms part of this Agreement and warrants that it will comply with the AUP in all respects.
7.2. AAG or its 3rd Party Provider will determine, at their discretion, whether there has been a breach of this AUP through Client use of AAG or its 3rd Party Provider’s Services or systems. When a breach of this policy has occurred AAG or its 3rd Party Provider may take such action as they deem appropriate.
7.3. Failure to comply with the AUP constitutes a material breach of this Agreement, which may have identified or noticed result in AAG or its 3rd Party Provider taking all or any of the following actions:
7.3.1. Immediately suspend or terminate Client access to use the Services or Systems of AAG or its 3rd Party Provider
7.3.2. Immediately suspend or remove any posting or material uploaded by the Client to Services or Systems of AAG or its 3rd Party Provider
7.3.3. Issue of a warning to Client via e-mail or post.
7.3.4. Legal proceedings against Client for reimbursement of all costs on an indemnity basis (including, but not limited to, reasonable administrative and legal costs) resulting from the breach.
7.3.5. Any further legal action against Client that is relevant due to the nature of the breach.
7.3.6. Disclosure of such information to law enforcement authorities as AAG or its 3rd Party Provider reasonably feel is necessary.
7.3.7. Charge for usage beyond the agreed Client order or fair usage.
7.3.8. Charge for any costs or expenses caused by the Client for breaching this AUP.
7.4. AAG exclude liability for actions taken in response to breaches of this AUP. The responses described in this AUP are not limited, and AAG may take any other action reasonably deemed appropriate whether internal or external with any associated and relevant third parties.
7.5. The Client hereby indemnifies and agrees to keep AAG fully and effectually indemnified from and against any and all losses, costs, actions, proceedings, claims, damages, expenses, including reasonable legal costs and expenses, or liabilities whatsoever suffered or incurred directly by AAG in consequence of the breach or non-observance of the AUP by the Client.
7.6. The Client shall defend and pay all costs, damages, awards, fees (including any reasonable legal fees) and judgements, awarded against AAG arising from the above claims and shall provide AAG with notice of such claims, full authority to defend, compromise or settle such claims and reasonable assistance necessary to defend such claim, at the sole expense of the Client.
7.7. Services may be used by the Client to link into other networks worldwide, and the Client agrees to conform to the acceptable use policies and terms of such networks.
7.8. AAG withholds the rights to suspend Services without notice and without any liability whatsoever on the part of AAG and without prejudice to the obligation of the Client to pay for the Services in their entirety if the Client Services are noticed and reported to being or suspected of being “compromised” outside of the AUP referred to in clause 7, including any unlawful, misuse or fraudulent activity. Any additional Service Fees, charges, fines or costs incurred by AAG due to the Client compromise will be invoiced to the Client for payment.
7.9. Fair usage
7.9.1. Client using AAG or its 3rd Party Providers services and systems are subject to the bandwidth, traffic volumes, cloud compute resource and software license limits as specified on the Service Agreement. Client are not authorised by AAG to exceed such limits. If the Clients usage is determined to be excessive then AAG will notify the Client by e-mail or post as soon as possible.
7.9.2. Clients accessing or using AAG or its 3rd Party Providers services and systems with unlimited, uncapped or inclusive volumes are subject to fair usage. Whilst AAG or its 3rd Party Providers uses its reasonable endeavours to provide a fast and reliable service for all users, the Client should note that services and resources are shared between multiple Clients and AAG requires all Clients not to make unreasonable demands on its network to affect other Clients.
7.9.3. If the Client is identified in AAG or its 3rd Party Providers reasonable discretion to be making excessive use of the Service and system AAG or its 3rd Party Providers may request the Client re-grades to a more suitable Service or system where the usage levels are more relevant to the Client needs as determined from previous activity and/or future expected growth. All requests will be sent via e-mail or post for Client authorisation. If the Client does not respond or agree to the request, then Talk Internet withholds the rights to restrict usage.
8.1. Rights granted to the Client pursuant hereto are personal and the Client undertakes that it will not assign this Agreement in any other way, transfer the Service, system or Software without prior written agreement from a director of AAG. Actual or attempted contravention of this restriction in any way, whether successful or not, will result in the Services being suspended or terminated by AAG without notice and without any liability whatsoever on the part of AAG, and without prejudice to the obligation of the Client to pay for the Services in their entirety as per the agreed Client Order.
8.2. AAG shall be entitled to assign this Agreement either in whole or in part under the same terms as per the Client Order.
9. DATA PROTECTION, RELEVANT LEGISLATION AND INDUSTRY REGULATIONS
9.1. The Client is required to provide a list of authorised contacts for their account which AAG will use to provide notification and authenticate authorisation of any changes. It is the responsibility of the Client to inform AAG in writing of any changes to these authorised contacts.
9.2. In the event of an acquisition of AAG or of a liquidator, administrator or receiver being appointed over AAG or all or any part of the assets of AAG, the Client’s information will only be passed to the acquiring or appointed third party of the business providing that such third party undertakes to use the Client’s information for the same purposes as set out in this Agreement. The Client’s information will not be disclosed to government or local authorities or other government institutions save as required by law or other binding regulations.
9.3. AAG will use the Client’s information for the purpose of fulfilling orders placed by the Client, processing any other transactions authorised or made by the Client with AAG, informing the Client of new products, updates, offers and providing other marketing information to the Client which AAG thinks the Client may find of interest or for the purposes of undertaking Client research.
9.4. The Client warrants that it complies with and will remain throughout the course of the Agreement compliant with Relevant Legislation as well as relevant industry regulations, including without limitation those issued by OFCOM and OFTEL and all other applicable laws.
9.5. AAG warrants that it has appropriate technical and organisational measures in place to protect any personal data it is processing against any unauthorised or unlawful processing and against any accidental loss, destruction or damage as defined in the Data Protection Act 1998 (the Act), including all GDPR regulations (EU) 2016/679. AAG shall comply with all relevant provisions of the Act and do nothing which causes, or may cause, AAG to be in breach of its obligations under the Act.
9.6. AAG shall be entitled to and is authorised by the Client to retain any data or information supplied by the Client or other third party on behalf of the Client, directly or indirectly, under the terms of this Agreement for such periods as are required under any applicable law.
10. SOFTWARE AGREEMENT
10.1 The right of the Client to use the Software and the documentation provided with the Agreement, both of which are protected by copyright laws, is limited to the terms and conditions described herein.
10.2 The Client may use the Software only if it has either directly accepted the relevant license agreement of the manufacturer and/or by acceptance of all and any specific terms provided by AAG with the Order or otherwise from time to time in relation to the use of such Software. The Client may not (a) distribute copies of any of the Software or associated documentation to others, (b) sell, rent, lease, sub-license or otherwise grant any rights to the Software, except to the extent dictated in the associated documentation or instructions for use or as permitted by law, translate, reverse engineer, de-compile or disassemble, or otherwise alter the Software or associated documentation without the prior written consent of AAG or its 3rd Party Provider or the software manufacturer; or (c) ship or transmit (directly or indirectly) any copies of the Software, or any technical data in the Software or its media, or any direct product thereof, to any entity or place.
10.3 The Client’s licence to use the Software shall continue for the term of the relevant license agreement with the manufacturer or otherwise for the term of this Agreement, unless terminated by notice in writing for whatever reason. The Client’s licence will terminate immediately if the Client fails to comply with any of AAG terms and conditions and or breaches any term of the software manufacturer’s license. Upon any termination, the Client must remove all copies of the Software in any form from its systems, without prejudice to the obligation of the Client to pay for the Software in its entirety. The Client shall also provide a written certificate of proof confirming the removal of the Software from its computer systems and each and every device where applicable.
10.4 The Client will not vary the number of licences or users in relation to any Software at any time without giving prior written notice to Talk Internet.
10.5 Neither AAG or its 3rd Party Provider nor any other provider of the Software warrants that the Software is error-free, will operate without interruption or is compatible with all equipment and software configurations. In addition, the security mechanism implemented by the Software has inherent limitations and the Client must determine that the Software meets the Client’s needs. This warranty does not cover any Software that has been subjected to damage or abuse or which has been altered or changed in any way. AAG or its 3rd Party Provider is not responsible for problems caused by computer hardware, computer operating systems or the use of the Software in conjunction with non- 3rd Party Provider software.
10.6 Except as provided in this Clause 10, AAG or its 3rd Party Provider gives no other warranties, express or implied, with respect to the Software, its merchantability or fitness for a particular purpose.
10.7 Limitation of Liability regarding the Software, Clause 10.6 and 10.7 are without prejudice to the general application of Clause 4.
10.8 In no event shall AAG or the manufacturer of the Software or the Software providers be liable for any indirect loss, consequential loss, loss of profit, revenue, data or goodwill howsoever arising suffered by the Client or for any wasted management time, failure to make anticipated savings or liability of the Client to any third party arising in any way in connection with this Agreement.
10.9 In no event shall the liability of AAG or the provider or manufacturer of the Software exceed the amount paid by the Client for the Software at issue. The Client shall not use the Software in any case where damage or injury to person, property or business may occur if any error occurs. The Client expressly assumes all risk for such use.
10.10 Subject to any pre-existing rights of third parties and of the Client the Intellectual Property Rights (IPR) in all reports, documents and other materials which are generated or acquired by AAG or its 3rd Party Provider in the performance of the Services shall belong to and become vested in AAG. Nothing in this Agreement or done under the terms of this Agreement shall be taken to diminish any AAG copyright, patent rights or any other IPR which would apart from this Agreement, vest in AAG.
11 TERM AND TERMINATION
11.1 This Agreement to provide the Services will continue for the Contract Period and thereafter unless terminated by either party giving:
11.1.1 90 days’ written notice for co-location Services.
11.1.2 60 days’ written notice for Ethernet and Cloud Server Services.
11.1.3 30 days’ written notice for all other service.
11.2 Such notices not to expire prior to the end of the Contract Period.
11.3 Either party may terminate this Agreement immediately by written notice to the other in the event that any of the following occur:
11.3.1 the other fails to pay any amount due as referred to in clauses 2.6 or breaches any term of this Agreement and such breach is incapable of remedy or continues for a period of 30 days after notice requiring the same to be remedied has been given by the terminating party to the other party; or
11.3.2 an order is made or a resolution is passed for the winding up of the other party, or if a provisional liquidator is appointed in respect of the other party, or if an administration order is made in respect of the other, or if a receiver is appointed in respect of the other or all or any of its assets or if the other is unable to pay any of its debts within the meaning of Section 123 of the Insolvency Act 1986, or if any voluntary arrangement is proposed under Part 1 of the Insolvency Act 1986 in respect of the other.
11.4 Upon termination of this Agreement, for whatever reason, all due or outstanding Fees and expenses owed by the Client to AAG shall forthwith become due and payable.
11.5 Upon termination of this Agreement for whatever reason the Client must return all equipment owned by AAG or its 3rd Party Provider without delay, and all the equipment that is owned by the Client must be removed from the premises of AAG or its 3rd Party Provider with immediate effect. AAG reserves the right to charge the Client for the true value of any property not returned by the Client. AAG also reserve the right to charge the Client for any engineering works undertaken together with any storage and delivery costs for removing or recovering equipment owned either by party. The Client agrees to remove all software, data and configuration settings from all systems relating to the terminated Service provided by AAG or its third parties.
11.6 In the event of early termination, Client shall be required to pay AAG all those fees that remain outstanding for the balance of the Service Agreement Period.
11.7 AAG may without liability, and to protect its network, systems and other Clients Services, elect to suspend the Services immediately on breach or suspected breach of the terms and conditions of this Agreement and any other third party terms that form part of the Order.
12.1 Subject to Clause 12.2, this written Agreement together with any schedules, and the Order constitutes the entire Agreement between the parties hereto relating to the subject matter hereof and neither relied on any representation made by the other party unless such representation is expressly included herein. Nothing in this Clause 12.1 shall relieve either party of liability for fraudulent misrepresentations and neither party shall be entitled to any remedy for either any negligent or innocent misrepresentation except to the extent (if any) that a court or arbitrator may allow reliance on the same as being fair and reasonable.
12.2 To the extent that there is any inconsistency between a term specified in this Agreement and any term specified in the Order, the term of the Order shall prevail and take precedent.
12.3 AAG shall be entitled to amend any term or condition of this Agreement, including without limitation the Services, upon giving not less than 30 days’ written notice to the Client.
12.4 If any provision of this Agreement or part thereof shall be void for whatever reason, it shall be deemed deleted and the remaining provisions shall continue in full force and effect.
12.5 Any AAG notice given pursuant hereto may be sent in writing by pre-paid registered letter or recorded delivery to the invoicing addresses or to the main contact e-mail address given by the Client. Such notice shall be deemed to have been duly served upon and received by the addressee, when served personally, at the time of such service or, when posted, 48 hours after the same shall have been put into the post correctly addressed and pre-paid, or if by e-mail, at the time the e-mail is sent.
12.6 Neither party shall in any circumstances be liable to the other party for any loss whatsoever whether directly or indirectly incurred or suffered by the other party by reason of any delays or failures in the performance of its obligations hereunder (other than in relation to payment) resulting from acts or causes beyond its reasonable control (including but not limited to a fault of sub-contractors, strikes, lock-outs or other industrial disputes, failure of a utility service or transport or communications network, acts of God, war, terrorism, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant of machinery, fire, flood, or storm (Force Majeure). If either of the parties shall become aware of any circumstances of Force Majeure which gives rise to or which is likely to give rise to any such delay or failure on its part, it shall forthwith notify the other party immediately and shall inform the other party of the estimated period that such delay or failure will subsist. If the Force Majeure circumstances continue for a period of 30 days or more either party shall be entitled to terminate this Agreement by written notice to the other.
12.7 Any delay or forbearance by either party in enforcing any provisions of this Agreement, or any of its rights hereunder, shall not be construed as a waiver of such provision or right thereafter to enforce the same.
12.8 This Agreement shall be governed by the laws of England and the parties submit to the exclusive jurisdiction of the Courts of England and Wales.
12.9 The parties shall attempt in good faith to negotiate a settlement to any dispute between them arising out of or in connection with this Agreement. If the parties cannot resolve the dispute within 12 weeks of the dispute being raised, or if the Client has received a notification from AAG or its 3rd Party Provider confirming that the matter in dispute has reached deadlock, either party may choose to refer the dispute to mediation by Ombudsman Services for independent alternative dispute resolution. If the dispute has not been resolved within 30 days of referring it to Ombudsman Services then either party shall be entitled to take such further action and/or proceedings as it sees fit.
12.10 Notwithstanding the provisions of clause 9.6 each party agrees to keep confidential and not to disclose to any third party without the prior written consent of the other parties (except as may be required by any law or any legal or regulatory authority) any information of a confidential nature (including trade secrets and information of commercial value) which may become known to such party from the other party and which relates to the other party, unless such information is public knowledge or subsequently becomes public knowledge other than by breach of this Agreement. Each party shall use its reasonable endeavours to prevent the unauthorised disclosure of any such information. The provisions of this clause shall remain in force following termination of the Agreement.
This Agreement shall apply to the provision of Services (as defined in the Conditions) by AAG to the Client. By signing this Master Agreement you are agreeing that you are duly authorised to sign on behalf of the “Client”.