AAG IT SERVICES LTD MANAGED SERVICE TERMS & CONDITIONS
THESE TERMS are applicable from 26th February 2018.
IT IS AGREED as follows:
During the term of your Managed Service Provision with AAG IT Services Ltd (“AIS”) it is agreed that authorised representatives of both parties have signed a separate Service Agreement detailing the services provided. The Service Agreement will be subject to and forms part of AIS standard Terms & Conditions of business, which are detailed below.
For avoidance of doubt the Services shall commence on the date stated in the relevant Service Agreement and not above.
1.1 In these terms and conditions, the following words shall have the following meanings:
Means any hardware provided by AIS (whether owed by AIS or by a Third-Party Provider) to the Client as specified in an Order or required to provide the Services
Means acceptance by AIS of an Order from the Client in writing or by email, or by commencement of the provision of the Goods and/or Services in accordance with clause 2.5 (and “Accepted” shall be interpreted accordingly).
“Acceptable Use Policy”
Means AIS’s acceptable use policy as published at http://www.aag-it.com which may be modified from time to time by AIS
Means any application or software supplied to the Client by AIS in performance of the Services
Means the asset schedule listing details of Client Equipment (as defined in the Service Agreement/ Proposal Document/ Client Inventory Report) to be supported by AIS, where a given Service includes support, as included in the Service Agreement, a copy of this
Means AIS’s standard billing rates and other rates from time to time for the provision of its services
Means the charges payable by the Client to AIS for the provision of the Goods and/or Services, as set out in the Order(s) (which, for the avoidance of doubt, may refer to a price list published by AIS from time to time)
Means all data processed by AIS or otherwise provided to AIS pursuant hereto
Means the hours specified in the relevant Service Contract or, if no hours are specified then, the hours of 8:00am to 5:30pm Monday to Friday excluding bank holidays.
Documentation used or provided by AIS in connection with the provision of the Services hereunder
Means the Equipment explicitly and specifically listed in the relevant Service Contract together with any additional charges which may become payable pursuant to Clause 5.2.
“Event of Force Majeure”
Means an instance of force majeure as defined in Clause 11.1
Means the charges specified in the relevant Service Agreement together with any additional charges which may become payable.
Means either (a) material failure of the Services, or the infrastructure to perform in accordance with the Documentation; or (b) a cessation, interruption or degradation of the functionality of the Services or the Infrastructure
Means the goods to be provided by AIS, as set out in the Order(s)
Means the network infrastructure either owned by AIS or the Client, as set out in the Order(s) and/or Asset Schedule
Means an unplanned interruption to the normal operation of the equipment
“Intellectual Property Rights”
Means patents, trademarks, service marks, design rights, domain names, database rights, registrations and applications for registration for any of the foregoing copyright and all rights in the nature of copyright, trade secrets, know-how and other industrial and intellectual property rights, wherever subsisting
Means the Master Agreement for services entered into by AIS and the Customer incorporating these Conditions pursuant to which all Service Contracts are agreed.
Means any minimum term for provision of the Services set out in an Order Form
Means an order for the provision of Goods and/or Services submitted by the Client to AIS on the relevant Order Form or the acceptance by the Client of a Quotation
Means order form(s) for some or all of the Services, as may be provided to the Client by AIS from time to time. For the avoidance of doubt, where an Order Form has been provided by AIS for a particular part of the Services, the Client shall use such Order Form to order such Services
Means a quotation for the provision of Goods and/or Services which has been prepared by AIS and delivered to the Client. Unless otherwise set out in a Quotation, all Quotations shall be valid for 30 days from the date of issue.
Means any act or omission or delay by the Client the effect of which is materially to prejudice the ability of AIS to perform its obligations in accordance with an Order or this Agreement
Means the AIS Service Agreement document for the Service(s) including the Order Form for the Services and the Service Terms
Means any specific terms and conditions set out separately or within a Service Agreement or with an Order which are specific to the Services being delivered
Means the services to be provided by AIS as set out in the Order(s) and relevant Service Agreement
Means the location of the Client’s business operations and its infrastructure as set out in the Service Agreement document.
Means additional sums which may be charged under this Agreement in accordance with AIS’s rates from time to time for work undertaken on a time and materials basis
“Third Party Provider”
Means the provider of Third Party Services
“Third Party Services”
Means any part of the Services which AIS procures from a third party, including broadband access connections and any third-party hosting services, telecommunications services and/or licencing or equipment
“Third Party Software”
Means any open source or third-party application or software used or supplied pursuant to this Agreement and the use of which is subject to the relevant vendor’s licence agreement as specified in an Order
Means a weekday other than UK bank and public holidays
Means the hours in which the Services are to be provided in accordance with the Order(s) and Section 14 of this document.
1.2 The clause headings are included for convenience only and shall not affect the construction or interpretation of this Agreement;
1.3 Use of the singular includes the plural and vice versa;
1.4 Words importing a particular gender to not exclude other genders;
1.5 Any reference to ‘persons’ incudes natural persons, firms, partnerships, bodies corporate, corporations, associations, organisations, governments, states, foundations and trusts (in each case whether or not incorporated and whether or not having separate legal personality);
1.6 Any reference to a statute, statutory provision or statutory instrument includes a reference to that statute, statutory provision of statutory instrument together with al rules and regulations made under it as amended or consolidated as at the date of this Agreement.
1.7 In the event of a conflict between the terms of this Agreement and the Services Term or Order, the Service Terms will prevail over this Agreement and the Order will prevail over the Service Terms.
2.0 ORDER PROCESS
2.1 Each Order shall be deemed to be an offer by the Client subject to this Agreement. The Client shall ensure that each Order is complete and accurate.
2.2 A binding contract for the provision of the Goods and/or Services shall not come into existence between AIS and the Client until Acceptance by AIS of the Client’s Order as determined in accordance with clause 2.5.
2.3 For the avoidance of doubt, in the event that an Order Form is submitted by the Client and contains its own terms and conditions, those terms and conditions shall not form part of the contract between the parties.
2.4 In order validly to submit an Order, the Client must either: -
2.4.1 Sign the Quotation and return it to AIS by post or email; or
2.4.2 Use AIS’s electronic document signature service – an online facility through which Quotations may be transmitted.
2.5 AIS will convey Acceptance of an Order either by any of the following means: -
2.5.1 By first class post in which case it will be effective on posting;
2.5.2 By email in which case it will be effective on transmission, subject in the case of a to an “ok” confirmation; or
2.5.3 By commencement of delivery of the Services, in which case Acceptance will be effective on such commencement.
3.1 From the Effective Date and for the duration of this Agreement, and in consideration of the payment of the Charges and any other sums due hereunder and subject to Events of Force Majeure and Relevant Events, AIS shall provide, or procure the provision of the Goods and/or Services to the Client in accordance with the terms of this Agreement and any applicable Service Terms and the terms within the Order. The parties may agree amendments to this Agreement by the submission and Acceptance of new Orders.
3.2 AIS will use reasonable endeavours to provide the Services promptly, having regard to the availability of personnel, necessary supplies and facilities and commitments to other customers. All dates or times quoted for commencement or completion of any part of the Services and for delivery of the Goods are estimates only.
3.3 There are no setup fees for the service, however there may be a requirement to bring inappropriate systems to a suitable support level prior to the contract being enabled. If AAG undertakes such remediation work on behalf of the client, then separate fees may be incurred and the work will be considered separate to the provision of this service.
3.4 Clients requiring additional works not covered by MSP — such as new installations or projects, or changes outside the scope of MSP — will be charged at AAG’s normal Contract Hourly Rates without commitment, this will be quoted before any work commences. This includes any and all works undertaken prior to the contract start date.
3.5 In the event the Client submits an Order for Third Party Services, such submission shall be deemed to confirm the Client’s acceptance of all terms and conditions of the Third-Party Provider as have been notified to the Client by AIS either alongside or separately to the Quotation, as if such terms and conditions had been executed between the Client and the Third-Party Provider. In the event that the Client is notified of the terms and conditions of a Third-Party Provider after the date on which the Client submits an Order for such Third-Party Services, the Client’s continued use of such Third-Party Services shall be deemed to confirm the Client’s acceptance of all terms and conditions of the Third-Party Provider as if such terms and conditions had been executed between the Client and the Third-Party Provider.
3.6 Services may be provided remotely via the Client’s internet connection or by telephone. Where, in AIS’s sole opinion, it is necessary and/or desirable for the Client to install remote support and/or management software, such software, of AIS’s own choosing, will be provided by AIS at AIS’s own expense. If the Client wishes to use alternative remote support and/or management software, then the cost for sourcing and implementing such software will be borne by the Client.
3.7 Where appropriate, AIS shall provide the Services remotely. If, in AIS’s sole opinion, remote provision or support is not appropriate, AIS may send personnel to the Site to enable provision or support of the Services. In such event T&M Charges shall be payable for each hour during which AIS personnel are in attendance at the Site, unless otherwise included or waived in the Service Agreement for the Service(s) or otherwise agreed in writing between the parties. At AIS’s sole discretion, it may also charge for any incurred expenses and/or travel time at its then current rates.
3.8 AIS shall be entitled to make variations and additions to the Services from time to time (acting reasonably) including:
3.8.1 To improve or add to the Services
3.8.2 To make changes for operational reasons where these do not have a materially adverse effect on the Services;
3.8.3 To pass through any change made by any third party to any Third-Party Services;
3.8.4 In order to comply with any law or legal obligation (whether under common law, statute, tort or otherwise), or any change to any law or legal obligation;
3.8.5 In order to comply with any final order, provisional order, direction, notice, specification, designation or consent made by the Office of Communications (Ofcom) or any other regulatory body; and
3.8.6 In order to maintain the integrity, efficiency or security of the Services and/or any part of the Infrastructure and/or AIS’s Systems.
3.9 AIS may suspend the Services without notice or liability to the Client if AIS reasonably believes the circumstances justify this to protect itself or others or to comply with any law, please refer to our Acceptable Use Policy as published at http://www.aag-it.com. In making the decision to suspend the Services, AIS is not obliged to consider the cost or damage to the Client that may be caused by suspension of the Services to the Client.
3.10 AIS represents and warrants to the Client that:
3.10.1 AIS has full right power and authority to provide the Services to the Client in accordance with the terms of this Agreement and has obtained all necessary licences to enable it to perform the Services and to enable the Client to use the Services;
3.10.2 Subject to Events of Force Majeure and Relevant Events, AIS will use its reasonable efforts to provide the Services and all other services to be provided to the Client using reasonable care and skill and in accordance with good industry practice in accordance with the terms of this Agreement and any Order; and
3.10.3 AIS has all requisite registrations and complies to all current data protection legislation and will maintain such registrations throughout the term of this Agreement and will comply with the provisions of such legislation
3.11 AIS makes no warranty, representation or undertaking in respect of any Application and, save as set forth in this Agreement, all warranties and representations (including without limitation any as to fitness for any particular purpose satisfactory quality or merchantability of an Application) are hereby excluded to the fullest extent permitted by law. Any and all software provided or utilised under or pursuant to this Agreement or an Order is licensed to AIS by third parties and shall therefore be provided on an “as is” basis with no warranty or representation of any kind whatsoever.
3.12 AIS makes no warranty that operation of the Services will be uninterrupted or error-free.
3.13 If during the performance of the Services, the Client wishes to modify or add to the Services:
3.13.1 The Client shall provide to AIS written particulars of the proposed change(s) (the “Addition”) and such further details as AIS may require;
3.13.2 If requested to do so, AIS will provide the Client with a fixed cost for the Addition, otherwise costs of the Addition may be estimated on a time and materials basis;
3.13.3 Upon notification of the cost for the Addition via Quotation, the Client may elect to either:
126.96.36.199 Accept the Quotation in which case the Order will be amended in accordance with its terms; or
188.8.131.52 Withdraw the proposed amendments in which case the Order shall continue in force unchanged.
3.13.4 If the Client determines that the Addition is to be carried out, full particulars of the Addition are to be recorded in a written memorandum to be appended to the Order as a document in the form of a schedule
3.13.5 Additions will be carried out as part of and on the terms and conditions of this Agreement.
3.14 The Client may not resell the Services, in whole or in part, without the written permission of AIS.
4 SUPPLY OF GOODS
4.1 Risk of loss of or damage to the Goods shall pass to the Client on delivery of the Goods to the Client or the Client’s carrier and the Client shall insure the Goods from that time until ownership of and title to them passes to the Client.
4.2 Ownership of the Goods shall not pass to the Client until AIS has received in full (in cash or cleared funds) all sums due to it in respect of the Goods and all other sums which are or which become due to AIS from the Client on any account.
4.3 Until ownership of the Goods has passed to the Client, the Client shall:
4.3.1 Hold the Goods on a fiduciary basis as AIS’s Bailee;
4.3.2 Store and hold the Goods (at no cost to AIS) in such a way that they remain readily identifiable as AIS’s property and not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods;
4.3.3 Maintain the Goods in satisfactory condition insured through a reputable insurance company on AIS’s behalf for their full price against all risks to the reasonable satisfaction of AIS;
4.3.4 Produce on request the policy of insurance to and hold the proceeds of such insurance on trust for AIS and not mix them with any other money, nor pay the proceeds into an overdrawn bank account; and
4.3.5 Grant to AIS, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Client’s right to possession has terminated, to recover them.
4.4 The Client may not resell, use or otherwise dispose of the Goods before ownership has passed to it.
4.5 Until ownership of the Goods has passed to the Client, the Client’s right to possession of the Goods shall terminate immediately if:
4.5.1 Any of the events set out in clause 8.5 occur; or
4.5.2 The Client encumbers or in any way charges any of the Goods.
4.6 AIS shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from AIS.
4.7 All Goods supplied by AIS to the Client pursuant to this Agreement shall be supplied without any warranty, representation or condition, whether express or implied by common law or statute and all such warranties, representations and conditions are excluded to the fullest extent permitted by law, save that any manufacturers’ or suppliers’ warranties that are capable of assignment shall be assigned by AIS to the Client.
4.8 RETURNS POLICY
4.8.1 If the need for a return has been identified, whether due to AAG I.T Services Limited error, Customer error and or Vendor error, this needs to be reported to AIS within 3 working days of receipt of delivery.
4.8.2 If any good(s) are ordered in customer error: AIS will require authorisation from the Vendor for the good(s) supplied before accepting a return(s).
4.8.3 If the packaging of the good(s) is opened your return(s) may be rejected, subject to the Vendor’s terms and conditions.
4.8.4 If a return(s) is an AIS error, this will be collected free of charge and a credit will be applied to the Customer’s account.
4.8.5 If an advanced replacement is required, then AIS will arrange for this to be completed, subject to availability. Before an advanced replacement will be approved, signed confirmation via the AIS electronic signature tool will be required from the Customer ensuring that the original good(s) delivered will be returned.
4.8.6 Any good(s) received by AIS without a valid Returns Number will be returned to the Customer.
4.8.7 Any good(s)/packaging that are delivered in a damaged condition, must be signed for with the courier as damaged on delivery. AIS must be notified within 2 working days of the damaged condition.
4.8.8 If the return(s) is due to Customer error, the Customer will need to return the good(s), within 3 working days of the return(s) being issued back to AIS at the Customer’s own cost. If the good(s) are not returned to AIS within this time frame, AIS reserve the right to reject the claim.
4.8.9 If the return(s) has been confirmed to be a Customer error, the manufacturer’s packaging needs to be in pristine condition. If the manufacturer’s seal has been broken the good(s) will be returned to the Customer and payment in full will be required
4.8.10 AIS is not responsible for loss or damaged packages of good(s) that are being returned under our Returns Policy. Please insure your return and obtain a tracking number as a safeguard. AIS also recommend you utilise appropriate and adequate packaging when shipping your return(s) to avoid damage to the product.
4.8.11 P.O. Box addresses are NOT accepted for returns. You must provide us with a physical address to continue with our Returns Policy. If a P.O. Box is used, AIS will not be responsible for lost packages.
4.8.12 Damages, defects or missing goods must be reported within 5 business days of receipt of good(s).
4.8.13 International Customers are responsible for custom charges including, but not limited to, brokerage, taxes, duties and other fees.
4.8.14 Replacements are processed upon product availability.
4.8.15 Any personal data should be removed before returning products to AIS. AIS is not liable for loss or misuse of any personal data stored on returned products.
4.8.16 AIS will attempt to collect a return(s) from a Customer’s location a maximum of 3 times before the return is cancelled.
5 CLIENT’S OBLIGATIONS
5.1 The Client shall at all times and at its own cost, throughout the term of this Agreement and any Order:
5.1.1 Provide and maintain such hardware, software, connections and configurations at the Site and/or on its infrastructure as recommended by AIS;
5.1.2 Give the personnel of AIS such rights of access to the Client’s personnel and premises and infrastructure as are reasonably required by AIS for the purpose of providing the Goods and/or Services;
5.1.3 Procure that, where personnel of AIS work on the Client’s premises, such personnel are provided with reasonable office accommodation and facilities, including telephone, power and communication links. The infrastructure must be readily accessible from such accommodation and facilities;
5.1.4 Procure that its employees and any sub-contractors co-operate with the reasonable requests of AIS in relation to the provision of the Goods and/or Services;
5.1.5 Procure that the personnel of AIS are entitled to carry out the Services without being subjected to either verbal or physical abuse. Furthermore, the Client undertakes to treat the personnel of AIS in a courteous manner. Any breach of this clause 5.1.5 will entitle AIS to suspend provision of the Services or delay delivery of any Services without penalty;
5.1.6 Care for and operate all AIS Equipment and Infrastructure and other hardware related to the Services in accordance with the user and/or operator manuals and AIS’s instructions;
5.1.7 Not permit any persons other than AIS and its authorised representatives to modify, alter or enhance the infrastructure without the prior written permission of AIS;
5.1.8 Use reasonable endeavours to perform all Client administered tasks and routines requested by AIS in accordance with the schedule and specification for such tasks and routines agreed with AIS;
5.1.9 Maintain a written dated and timed record of any routines, modifications, alterations or enhancements to the Infrastructure performed by the Client or any third party, including, but not limited to, software and hardware configuration changes, installations and removals;
5.1.10 Notify AIS promptly on detecting that the Infrastructure is not operating correctly;
5.1.11 Permit only authorised and suitably experienced and qualified personnel to contact AIS to request provision of the Services;
5.1.12 Ensure that there is a legitimate licence for every copy of a software program in use, whether the software is installed on individual or networked computers and, further, to ensure that such licences permit use by AIS as required to perform the Services and that the Client complies with such licence terms and conditions;
5.1.13 Be responsible for obtaining and maintaining any consents, permits, licences and authorisations to enable the Services to be provided whether or not AIS is responsible for obtaining any consents, permits, licences or authorisations required by the Services themselves;
5.1.14 Other than where AIS has agreed to be responsible for the management and administration of part or all of the Infrastructure, be responsible for the management and administration of the Infrastructure;
5.1.15 Store safely all disks, manuals, hard copy licence agreements and/or Documentation relating to such software;
5.1.16 Within a reasonable time, furnish AIS with such information and documents as it may reasonably request for the proper performance of its obligations hereunder. The Client shall use reasonable endeavours to ensure all such information or documents are complete and accurate;
5.1.17 Provide access to all personnel, including decision-makers, reasonably required by AIS in order to provide the Goods and/or Services;
5.1.18 Take all reasonable steps including any steps specified by AIS or the relevant manufacturer to ensure that, as far as reasonably practicable, any equipment, facilities or offices will be safe and without risks to health at all times;
5.1.19 Keep AIS informed of any change to the Client’s address as set out herein and other such information as may affect the payment of charges due;
5.1.20 Where the Service includes the provision of AIS Equipment, the Client will not interfere with any markings, plates, trademarks, logos or service marks indicating ownership of the equipment, and will be responsible for regularly cleaning the exterior surfaces of all such equipment in accordance with the instructions provided by AIS, and will not, without the prior written consent of AIS, remove or keep such equipment or permit the same to be removed or kept outside of the United Kingdom; and
5.1.21 Unless otherwise provided as a separate Service by AIS to the Client, and subject to any applicable terms for that Service, the Client shall be solely responsible for the security and provision of backup copies of its own data and for ensuring that any backups are protected.
5.2 The Client shall not, and shall procure that its employees and sub-contractors shall not:
5.2.1 Use the Good or Services to transfer an illegal material (including but not limited to material which may be deemed to be offensive, abusive, indecent, defamatory, obscene, menacing or in breach of copyright, privacy or other rights);
5.2.2 Use the Goods or Services to send menacing, offensive, abusive or annoying messages (commonly referred to as, but not exclusively, ‘spam’ or Unsolicited Commercial Email ‘UCE’);
5.2.3 Divulge one or more passwords that allow the Client to have access to the Services to a third party and shall keep all passwords confidential and inaccessible to third parties;
5.2.4 Announce by any means any and all internet addresses allocated to the Client as part of an internet autonomous system (AS); and
5.2.5 Use or permit the usage of the Goods or Services in an unlawful manner or in contravention of published legislation and regulations governing the internet.
5.3 In the event that the Client requires AIS to correct a Fault (in accordance with a relevant Order for Services), the Client shall follow the procedure as outlined in the Service Agreement or Order or as otherwise notified to the Client by AIS for reporting Faults.
5.4 The Client shall comply with the Acceptable Use Policy at all times. If, in the opinion of AIS, the Client has violated the Acceptable Use Policy, AIS may, without any liability for the consequences thereof or any prejudice to the Client’s payment obligations hereunder, suspend the provision of all or part of the Services to the Client and may restrict or block internet traffic to or from the infrastructure.
5.5 The Client shall not, and will not allow any other person to, violate or attempt to violate any aspect of the security of AIS’s Systems. The Client understands that any such violation is unlawful in many jurisdictions and that any contravention of law may result in criminal prosecution. Examples of violations are:
5.5.1 Accessing, copying, moving, transferring, deleting or in any way modifying data unlawfully or without consent;
5.5.2 Attempting to probe, scan or test the vulnerability of any computer system or network or to breach security or authentication measures;
5.5.3 Attempting to interfere with service to any user, host or network, including, without limitation, via means of overloading, “flooding”, “denial of service attacks”, “mail bombing” or “crashing”
5.5.4 Forging any TCP/IP packet header or any part of the header information in any e-mail or newsgroup posting;
5.5.5 Taking any action in order to obtain services to which the Client is not entitled.
5.6 Delays by the Client
5.6.1 Where any delay in the performance or delivery of the Services by AIS is caused directly or indirectly by the Client’s actions the time for performance or delivery of the Services as set out in the Work Order Schedule shall be extended by a period of time equivalent to the delay caused directly by the Client’s actions.
5.6.2 To the extent that any delay is directly or indirectly caused by any act or omission of the Client, AIS shall be entitled to charge the Client for the effects of such delay at the Billing Rate.
5.6.3 In the event that Client requests a delay in respect of the delivery, installation or provision of any Services in respect of which AIS has procured/is procuring certain or all elements from third parties, AIS reserves the right to raise invoices in respect thereof and to be paid in accordance with the Order.
5.7 The Client hereby acknowledges and agrees that AIS shall not be liable for any delay or failure to comply with its obligations hereunder, and shall indemnify AIS in full and on demand in respect of any costs, claims, damages or liabilities arising from any delay or failure by the Client to comply with the provisions of this clause 5.
5.8 If a client is covered under 24/7/365 support by AAG as stipulated in the Service Terms and an out of hours site visit is requested by the client or determined by AAG that a site visit is recommended then the client is responsible for ensuring and confirms that all appropriate access and all insurances, health and safety requirements have been met, according to all current and any updated legislations to English Laws in return AAG agrees to adopt all of the clients processes and procedures while on the clients site. If the out of hours site visit was prevented due to means out of AAG’s control caused directly by the client, then AAG may seek financial reimbursements. If this occurs an out of hours charge may apply, the rate of this can be found on AAG’s Service Catalogue, which can be updated at the discretion of AAG.
6.1 The Client shall pay the Charges set out in the Order(s) and otherwise arising pursuant to the provisions herein in accordance with the payment terms set out herein. AIS reserves the right to increase the Charges on each anniversary of Acceptance of the Order and will give at least 30 days’ written notice of any such intention.
6.2 AIS will issue invoices to the Client in accordance with the terms set out in the Service Agreement document.
6.3 The Client shall pay the Charges in accordance with the terms of the relevant Order or, where no payment terms are set out in an Order, within thirty (30) days of invoice date.
6.4 Unless otherwise expressly set out to the contrary in the applicable Order Forms, the Client shall pay all expenses reasonably incurred by AIS that are attributable to the provision of the Goods and/or Services. Such expenses shall include without limitation the cost of travel outside Working Hours to and from supported sites, attendance at meetings, and preparation of reports, telephone charges and courier costs.
6.5 AIS reserves the right to invoice the Client in advance in respect of all fees payable as disbursements to third parties such as hardware or software vendors. In such cases, all monies paid by the Client shall be held on account by AIS on behalf of the Client.
6.6 Except as otherwise stated the Charges are exclusive of VAT and all other taxes which shall be payable by the Client. Where applicable the Charges are also exclusive of other fees and charges payable to any third party, including but not limited to third party hardware and software suppliers, internet service providers, and domain name and company registries.
6.7 If payment is not received by the due date, AIS is entitled to charge interest on any unpaid amount at a daily rate which shall (after, as well as before, any unsatisfied judgement in respect thereof) be five per cent (5%) per annum above the Sterling base rate of HSBC Bank Plc. AIS shall also be entitled to recover its expenses in connection with such default in payment including legal expenses and costs of collection.
6.8 In the event of the Client’s failure to pay outstanding invoices, AIS reserves the right without any liability for the consequences thereof or any prejudice to the Client’s payment obligations hereunder, to suspend provision of the Services forthwith.
6.9 All amounts due under this Agreement shall be paid in full without any deduction or withholding other than as required by law and the Client shall not be entitled to assert any credit, set-off or counterclaim against AIS in order to justify withholding payment of any such amount in whole or in part.
6.10 The acceptance of any monies by AIS shall not be construed as an acceptance of such monies as the correct and full amount due and owing to AIS or as a waiver by AIS of any claims it may have against the Client.
7 LIMITATION OF LIABILITY
7.1 All warranties, representations, guarantees, conditions and terms, other than those expressly set out in this Agreement whether express or implied by statute, common law, trade usage or otherwise and whether written or oral are hereby expressly excluded to the fullest extent permissible by law.
7.2 Subject to clause 7.3, 7.4, 7.5 and 7.6, the maximum aggregate liability of AIS (including its respective agents and sub-contractors) arising from or in connection with this Agreement, whether arising in contract, tort (including negligence) or otherwise, shall not exceed four times the total Charges paid by the Client under the relevant Order.
7.3 In no event shall AIS (including its respective agents and sub-contractors) be liable for any loss or damage that is due to:
7.3.1 Defects in systems, hardware or software owned by third parties or the Client, supplied to the Client by third parties or procured by AIS from third parties;
7.3.2 Any defect or default arising from or caused by any changes made to the Infrastructure which have not been made or expressly approved in writing by AIS or resulting from what AIS reasonably considers to be abnormal usage;
7.3.3 Any unauthorised access to the Client’s Infrastructure, unless the parties have agreed in writing that AIS is responsible for the security of such networks and/or systems;
7.3.4 Any failure of the Goods and/or Services which results from interference (including maintenance, development or adaptation) by the Client or any third party which is not in accordance with the provided Service Teams or AIS’s specific instructions;
7.3.5 Any failure to the Client’s delay in providing information as reasonably requested by AIS. Any such failure which results in AIS spending additional time and expense to fulfil the Services shall be recoverable from the Client at the Billing Rate;
7.3.6 Any failure of Goods and/or Services that is due to any integration or interoperability issues arising with any third party or Client systems or legacy systems;
7.3.7 Any failure of the Services that is due to any failure of Third Party Services;
7.3.8 Any loss or corruption of data or information due to viruses or malicious damage or otherwise.
7.4 In no event shall AIS (including its respective agents and sub-contractors) be liable for:
7.4.1 Any loss of profits or business or revenue, damage to, destruction or loss of data, business interruption, loss of use, loss of contracts, loss of goodwill (whether direct or indirect), any failure to make anticipated savings or any wasted management time or any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses;
7.4.2 Any special, indirect, incidental, punitive, exemplary, or consequential damages arising out of or in connection with this Agreement, even if AIS has been advised of the possibility of such damages; whether or not caused by or resulting from its negligence or a breach of its statutory duties or a breach of its obligations howsoever caused even if it is advised of the possibility of such loss.
7.5 Interruptions to or other impact on the Services arising directly or indirectly from: -
7.5.1 Interruptions to the flow of data to or from the Client and/or other parts of the internet;
7.5.2 Changes to AIS’s own network or servers (including the implementation of any necessary upgrades and operating system patches) and other housekeeping tasks which need to be made;
7.5.3 The effects of the failure or interruption of services provided by third parties;
7.5.4 Factors outside of AIS’s reasonable control;
7.5.5 Any actions or omissions of the Client (including, without limitation, breach of Client’s obligations set out in this Agreement) or of any third parties;
7.5.6 Issues with the Client’s equipment and/or third-party equipment; or
7.5.7 Any interruptions to the Services requested by the Client.
7.6 For the avoidance of doubt, nothing in this Agreement shall be deemed to exclude, restrict or limit liability of either party (or their respective agents or sub-contractors) for death or personal injury resulting from their negligence or any liability for fraudulent misrepresentation.
7.7 Both parties accept that the limitations and exclusions set out in this Agreement are reasonable having regard to all the circumstances.
8 TERMS AND TERMINATION
8.1 This Agreement shall come into force on the Effective Date and shall, subject to any Minimum Term provision in the Order Form, remain in force until terminated by either party on the provision of not less than ninety (90) days’ notice in writing (save that no termination may take effect until all Goods and/or Services set out in all Orders have been provided and all payments received by AIS), passed unless terminated earlier in accordance with clauses 8.2 or 8.5.
8.2 Subject to clause 8.1 herein, the Client may terminate the Service Agreement prior to the completion of the Minimum Term subject always that the Client shall (I) give AIS ninety (90) days prior written notice; and (ii) forthwith pay AIS the remaining Charges and all other monies owed to AIS during the Minimum Term all of which, for the avoidance of doubt shall become due and payable upon termination in accordance with clauses 8.2.
8.3 Upon termination of the applicable Service Agreement for any reason and where the Client’s equipment is retained in AIS’s premises, the Client shall remove such of its equipment from AIS’s premises within five (5) Working Days of the date of the Client’s payment of all monies owed. In the event the Client fails to remove its equipment in accordance with this clause 8.3, AIS shall remove and deliver such equipment to the Client’s premises at the Client’s expense.
8.4 Notwithstanding the foregoing, all or any part of the Services may be suspended in the event that the Client does or suffers anything to be done that jeopardises the provision of the Services by AIS. No such suspension shall affect the liability of the Client to pay charges and other amounts to AIS hereunder.
8.5 In any event the Agreement may be terminated immediately on written notice:
8.5.1 By either party if the other party is in material breach of its contractual obligations and has not remedied such breach within ninety (90) days after receipt of a written notice of default from the other party;
8.5.2 By either party if the other party shall convene a meeting of its creditors or if a proposal shall be made for a voluntary arrangement within Part 1 of the Insolvency Act 1986 or a proposal for any other composition scheme or arrangement with or assignment for the benefit of its creditors or if the other shall be unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or if a trustee, receiver, administrative receiver, administrator or liquidator or similar officer is appointed in respect of the other party or all or any part of its business or assets or if a petition is presented or a meeting is convened for the purpose of considering a resolution or other steps are taken for the winding up of the other party or for the making of an administration order (otherwise than for the purpose of an amalgamation or reconstruction) or if any analogous step is taken in any jurisdiction;
8.5.3 By AIS if there is a change of control (as defined in Section 416 of the Income and Corporation Taxes Act 1988) in the Client or the Client’s parent company and we feel that there may be a threat to AIS’s intellectual property and vice versa; or
8.5.4 By the Client on at least 90 day’s written notice to AIS if it does not accept any increases made pursuant to clause 6.1 above.
8.6 Termination of this Agreement shall be without prejudice to any rights of either party arising on or before termination, which includes without limitation entitlement to payment of all sums due to AIS for Goods and/or Services supplied (including for the avoidance of doubt any Charges incurred in respect of work in progress) prior to the time when termination takes effect.
8.7 The provisions of clauses 6 (to the extent of any unpaid obligations), 7, 8.7, 9, 10 and 12 shall survive the termination of this Agreement and shall remain in full force and effect.
8.8 Termination of the Agreement, however arising, shall not affect or prejudice the accrued rights of the parties as at termination or the continuation of any provision expressly stated to survive in Clause 8.9, or implicitly surviving, termination.
8.9 The clauses relating to liability, confidentiality and data security shall survive termination of this Agreement.
8.10 If, during the term of this Agreement, AIS receives written notice from Client of any breach by AIS of the representations and warranties contained in this Agreement, AIS shall, at its own option and expense, endeavour to remedy that breach within a reasonable period following receipt of such notice, or terminate this Agreement and any relevant Service Agreement immediately on written notice to Client and repay to Client that part of the Charges which Client has paid to AIS under this Agreement or any relevant Service Agreement which relates to any unexpired part of the Service as per the Service Agreement. Client shall provide all information reasonably necessary to enable AIS to comply with its obligations under this Clause 8.10. This clause sets out Client’s sole remedy and AIS’s entire liability for breach by AIS of the representations and warranties contained in this Agreement and the relevant Service Terms and Service Agreement.
9.1 Each party recognises that under this Agreement it may receive trade secrets and/or confidential or proprietary information belonging to the other. Subject to the exclusions detailed in Clause 9.3, all such information which is designated as confidential or which is otherwise clearly confidential in nature constitutes “Confidential Information”. Such matters include, without limitation, information or secrets relating to: corporate and marketing strategy, business development and plans, sales reports and research results, business methods and processes, technical information and know-how relating to the other’s business and which is not in the public domain, including inventions, designs, programs, techniques, database systems, formulae and ideas; business contacts, lists of customers and suppliers and details of contracts with them; and any document marked “confidential”.
9.2 Each party agrees not to divulge Confidential Information belonging to the other or to any third party, without the other party’s prior written consent.
9.3 The following shall not be Confidential Information for the purposes of this clause:
9.3.1 Information which is in, or which comes into, the public domain otherwise than by reason of a breach of this Agreement or of any other duty of confidentiality relating to that information;
9.3.2 Information obtained from a third party without that third party being under an obligation (express or implied) to keep the information confidential;
9.3.3 Information which is lawfully in the possession of the other party before the date of this Agreement and in respect of which that party is not under an existing obligation of confidentiality.
9.4 Each party shall be permitted to disclose Confidential Information to the extent that it is required to do so:
9.4.1 To enable the disclosing party to perform its obligations under this Agreement;
9.4.2 By any applicable law or by a court, arbitral or administrative tribunal in the course of proceedings before it;
9.4.3 By any regulatory body (including any investment exchange) acting in the course of proceedings before it or any regulatory body (including any investment exchange) acting in the course of its duties, or
9.4.4 In order to give proper instructions to any professional adviser of that party who also has an obligation such Confidential Information confidential.
9.5 The obligation in Clause 9.1 above will survive the expiry or termination of this Agreement for a period of 5 years or, in respect of any particular item of Confidential Information, until such earlier time as that item of Confidential Information reaches the public domain otherwise than by reason of a breach of this Agreement or of any other duty of confidentiality relating to that information.
9.6 Each party shall ensure all relevant employees, agents and sub-contractors are aware of the confidentiality of the Confidential Information and take all such steps to ensure compliance by its employees, agents and sub-contractors with these confidentiality provisions.
9.7 For the avoidance of doubt, all Client Data shall remain at all times the exclusive property of the Client and may only be used by AIS in order to fulfil its obligations pursuant hereto.
10 NON-SOLICITATION OF EMPLOYEES
10.1 During the period this Agreement is in effect and for a period of 6 months thereafter, the Client agrees not to (either personally or by its agent or by letters, circulars or advertisements and whether for itself or on behalf of any other person) solicit or offer to any employees of AIS or any sub-contractors used by AIS hereunder without the prior written consent of AIS. The Client undertakes to use its reasonable endeavours to procure that its employees shall observe the terms of this clause provided that nothing in this clause shall prevent the Client from placing job advertisements in the general press or from making offers of employment in response to unsolicited enquiries.
10.2 In the event that the Client breaches clause 10.1, it shall be liable to pay, immediately on demand, and without prejudice to any other remedy that AIS may have, the equivalent of 12 months’ gross remuneration of the employee or sub-contractor or so solicited and/or employed.
11 FORCE MAJEURE
11.1 “Event of Force Majeure” means an event which falls within one or more of the following categories:
11.1.1 Riot, civil unrest, military action or terrorism;
11.1.2 Damage to or destruction of premises or equipment;
11.1.3 Earthquake, storm, flood or other natural disaster;
11.1.4 Deliberate sabotage of, or malicious damage to equipment or data (not attributable to AIS or any of its employees);
11.1.5 Industrial action, strikes or lock-outs by employees of third parties (excluding suppliers or sub-contractors of AIS except where no substitute is reasonably available);
11.1.6 Inability to obtain supplies of power, fuel, or transport;
11.1.7 Exercise of emergency powers by any United Kingdom governmental authority whether national, regional or local.
11.2 Either party shall be released from its obligations (other than an obligation to pay money) to the extent that performance thereof is delayed hindered or prevented by any circumstances beyond its reasonable control.
11.3 The party claiming to be affected by an Event of Force Majeure shall not be entitled to invoke the provisions of Clause 11.2 unless it fully performs the following obligations, namely:
11.3.1 On becoming aware of any Event of Force Majeure which gives rise, or which is likely to give rise, to any failure or delay in the performance of its obligations under this Agreement, it notifies the other party by the most expeditious method then available, giving details of the Event of Force Majeure, the obligations on its part which are affected and its reasonable estimate of the period for which such failure or delay shall continue;
11.3.2 It provides written confirmation and reasonable evidence of such Event of Force Majeure within 10 Working Days of notification under sub-Clause 11.3.1; and
11.3.3 It takes all reasonable steps to prevent, avoid, overcome and mitigate the effects of such Event of Force Majeure.
11.4 If either party is prevented from performing its obligations under this Agreement by an Event of Force Majeure which continues for more than 3 months, then either party shall be entitled to terminate this Agreement without liability to the other party forthwith on giving written notice of termination to the other party.
12 INTELLECTUAL PROPERTY RIGHTS
12.1 In consideration of payment of the associated Charges, AIS shall use its reasonable endeavours to procure that the third-party owner of the Third-Party Software grants to the Client a licence to use the Third-Party Software for the purposes of the Client’s receipt of the Services and such use by the Client shall be subject to the terms of such licence.
12.2 Without prejudice to the Client’s rights in its own materials the parties hereby agree that the Client shall not acquire any Intellectual Property Rights whatsoever in respect of any software, Documentation or other materials used by AIS in connection with or related to the provision of the Services hereunder.
12.3 AIS obtains no proprietary interest or Intellectual Property Rights in any Client Data but the Client hereby confirms to AIS that AIS is entitled to use such Client Data in connection with the provision of the Services and for the purposes of any additional services, including without limitation Client Data restoration and the Client hereby indemnifies and holds harmless AIS for the direct and indirect consequences of such use.
12.4 The Client hereby grants to AIS:
12.4.1 A non-exclusive, royalty-free, world-wide licence during the term of provision of the Services to uses, copy, store, reproduce, and manipulate Client Data for the purposes of using such data for the provision of the Services; and
12.4.2 A non-exclusive, royalty-free, world-wide licence during the term of provision of the Services to use, reproduce and display the Client’s trademarks for the provision of the Services.
12.5 Subject to any contrary provision in an Order, AIS undertakes only to use the Client’s trademarks for the purpose of providing the Services to the Client.
13.1 References to clauses and schedules shall be to clauses and schedules of this Agreement. The Order Form(s) form part of this Agreement and shall be interpreted accordingly.
13.2 Each party recognises that it is impossible to maintain flawless security but (where relevant) AIS shall take all reasonable steps to prevent security breaches in its interaction with Client and security breaches in any interaction with resources or users outside of any firewall that may be built into AIS’s servers.
13.3 Any failure to exercise or any delay in exercising a right or remedy provided by this Agreement or at law or in equity shall not constitute a waiver of the right or remedy or a waiver of any other rights or remedies. A waiver of a breach of any of the terms of this Agreement or of a default under this Agreement shall not constitute a waiver of any other breach or default and shall not affect the other terms of this Agreement.
13.4 Subject to clause 13.5, this Agreement, together with the Service Agreements entered into by the parties, constitute the entire agreement and understanding between the parties in respect of the matters dealt with in them and supersedes cancels and nullifies any previous agreement between the parties relating to such matters notwithstanding the terms of any previous agreement or arrangement expressed to survive termination. In entering into this Agreement neither party has relied on any representation made by the other party unless such representation is expressly included herein. Nothing in this clause 13.4 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, arbitrator or expert by the parties may allow reliance on the same as being fair and reasonable.
13.5 No alteration, modification or addition to this Agreement shall be valid unless made in writing and signed by the duly authorised representatives of both parties.
13.6 The Client is responsible for maintaining the confidentiality of any passwords which are required to benefit from the Services and is solely responsible for any damage caused by any such unauthorised access.
13.7 AIS shall be entitled without liability or notice to the Client to delete any Client Data which AIS determines is infected by viruses or other malware which AIS is unable to eradicate.
13.8 Subject to clauses 2.4 and 2.5, all notices, documents and other communications relating this this Agreement must be in writing and delivered, or posted by first class registered or recorded pre-paid post or sent by facsimile transmission to the registered office of AIS or the Client, as appropriate, and any such notice shall be deemed to have been duly served upon and received by the party to whom it is addressed at the time of delivery if delivered by hand, on the expiry of 48 hours after posting or at the time of transmission in the case of facsimile transmission.
13.9 The rights and remedies provided by this Agreement are cumulative and (subject as otherwise provide in this Agreement) are not exclusive of any rights or remedies provided at law or in equity.
13.10 Nothing in this Agreement is intended 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. Save where expressly so stated in this Agreement, neither party shall have authority to act in the name or on behalf of or otherwise to bind the other.
13.11 Neither party may assign any benefit or obligation arising under this Agreement, without the prior written consent of the other party (which consent shall not be unreasonably withheld or delayed). Any purported assignment which does not comply with the terms of this clause shall, as between the parties to this Agreement be null and void.
13.12 Without prejudice to any liability for fraudulent misrepresentation or fraudulent misstatement, each of the parties acknowledges and agrees that in entering into this Agreement, and the documents referred to in it, it does not rely on, and shall have no remedy in respect of, any statement, representation, warranty or understanding (whether negligently or innocently made) of any person (whether party to this Agreement or not) other than as expressly set out in this Agreement. The only remedy available to it for breach of the warranties shall be for breach of contract under the terms of this Agreement.
13.13 No term of this Agreement is enforceable under the Contracts (Rights of Third Parties) Act 1999 by a person who is not a party to this Agreement executed in any number of counterparts or duplicates each of which shall be an original and such counterparts or duplicates shall together constitute or duplicates shall together constitute one and the same agreement.
13.14 Each party shall bear its own legal costs and other costs and expenses arising in connection with the drafting, negotiation, execution and registration (if applicable) of this Agreement, any Service Agreements and any Orders.
13.15 If any part of this Agreement is found to be unreasonable, invalid or unlawful under any enactment or rule of law the Court shall have the power to strike out or override that part whether it be an entire clause or clauses or some part of parts thereof and enforce this Agreement as if the offending part or parts had not been included.
13.16 This Agreement shall be governed and construed in accordance with the Laws of England and shall be subject to the exclusive jurisdiction of the Courts of England.
13.17.1 AIS may change this Agreement (Terms and Conditions, AUP, and the Service Level Agreement) from time to time. In the event of a material adverse change AIS will give the Customer at least ninety (90) days’ notice before the change is to take effect, save where compliance with any legal or regulatory obligation requires a shorter period of notice or no notice. The Customer’s continued use of the Services following any such changes shall constitute the Customer’s acceptance of such changes.
13.17.2 Except as set out within this clause, no variations of the Agreement, including the introduction of any additional terms and conditions, shall be effective unless it is agreed in writing and signed by a Director of AIS.
14 OPERATIONAL LEVEL AGREEMENT (OLA)
14.1 AAG shall make the Service Desk available 24 hours a day, 7 days a week, 365 days a year to the Customer for reporting incidents on endpoints that are covered on a 24/7/365 basis. Any endpoints that are not covered by AIS’s 24/7/365 MSP provision will be able to contact the Service Desk during normal business hours.
14.1.1 Normal Business Hours = 08:00 - 17:30, Monday to Friday (excluding UK bank holidays)
14.1.2 Out of Hours = 17:30 – 08:00, Monday to Friday & 24 x 7, Saturday & Sunday (Remote Coverage ONLY).
14.1.3 24 x 7 = 24 hours a day, 7 days a week (including UK bank holidays)
14.2 AIS’s Managed Service is governed by an Operational Level Agreement (OLA). AIS attach an Operational Level Management program to this agreement which allows us to actively set, track and report on the following Key Performance Indicators (KPIs):
14.2.1 Response - How long does it take to respond to an incident, such as a call from a customer, an email or an alert from a remote monitoring system that reveals a service or device may not be performing as expected?
14.2.2 Resolution Plan — How long does it take from the initial notification and response to formulate a plan to resolve the incident
14.2.3 (Target) Resolution — How long did it take from the initial notification and response to actually implement the plan and restore service to normal levels?