Z – Managed services terms conditions

MANAGED SERVICE TERMS AND CONDITIONS

1. Parties

Optimising IT Limited (“OIT”) company registration number 6864178, whose registered office is at 1 Twigworth Court Business Centre, Twigworth, Gloucester, GL2 9PG (“Supplier”) and the (“Customer”) as defined in the Scope of Work.

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2 .Definitions and Interpretation

In this Agreement, unless the context otherwise requires, the following expressions have the following meanings:

“This/the Agreement”: – means this Agreement including its Scope of Work;

“Charges”: – means the periodic charges payable in consideration for the Services as referred to in clause 14;

“Customer”: – means the relevant contracted customers of Optimising IT;

“Customer Intellectual Property”: – means the software, documentation and materials in which the Customer owns the Intellectual Property Rights and all modifications, enhancements or additions thereto or replacements thereof made during the term of this Agreement;

“Customer’s Premises”: – means the premises identified in the Scope of Work;

“Data”: – means all data passed to OIT by the Customer or processed on the System(s) in the course of provision of the Services;

“Data Breach”: – has the meaning set out in the Data Protection Legislation;

“Data Protection Legislation”: – (i) unless and until the GDPR is no longer directly applicable in the UK, the General Data Protection Regulation ((EU) 2016/679) (GDPR) and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK and then (ii) any successor legislation to the GDPR or the Data Protection Act 2018.

“Effective Date”: – means the date specified as such in the Scope of Work;

“Employees”: – means those persons employed by the Customer immediately prior to the Effective Date whose names and addresses are set out in the Scope of Work (together with certain details of their respective employments);

“Fair Use”: – means service desk and support contact volumes that are no greater than 2x industry standard IT service desk contacts of 0.75 support requests per user per month; “Hardware” means the Customer’s computers and peripheral equipment, enhanced, added to or replaced during the term of this Agreement, as listed in the Scope of Work;

“Hardware Maintenance Service”: – means the hardware maintenance service described in clause 4.10;

“Intellectual Property Rights”: – means all rights arising by virtue of or in relation to copyrights, inventions, patents, trade marks (registered or unregistered), registered designs, database rights, applications for any of the foregoing, trade and business names, know-how, trade secrets and other competitively sensitive information and any other rights of the same or similar effect;

“Initial Term”: – means the inital minimum period of the agreement as specified in the Scope of Work

“Notice Period”: – means the minimum period of notice required to terminate the agreement as specified in the Scope of Work and subject to clause 17.1

“Off-site Service”: – means management services provided whilst the System(s) is located at the Customer’s Premises;

“On-site Service”: – means management services provided whilst the System(s) is located at OIT’s Premises;

“Personal Data”: – has the meaning set out in the Data Protection Legislation and includes (but is not limited to) special categories of personal data which reveal racial or ethnic origin, political opinions, religious or philosophical beliefs, sex, sexual orientation, trade union membership or the processing of genetic or biometric data, for the purpose of uniquely identifying a natural person;

“Provider”: – means Optimising IT;

“Processor”: – means any third party appointed to process Personal Data on behalf of the Provider;

“Service Hours”: – means the hours specified as such in the Scope of Work;

“Services”: – means the service level for this agreement as described in the Scope of Work;

“Scope of Work”: – means the detailed description of the Services to be provided, together with the Charges and any other key information, as agreed between the parties and attached to these terms and conditions;

“Service Levels”: – means the performance standards set out in the Scope of Work;

“Sub-Processor”: – means any organisation the Processor uses to fulfil services to the Provider;

“System(s)”: – means the provided Hardware as detailed in the Scope of Work;

“Third Party Products”: – means the software, documentation and other materials owned by a third party and licensed to the Customer which are listed in the Scope of Work together with any modifications, enhancements or additions thereto or replacements thereof during the term of this Agreement;

“Working Days”: – means Monday – Friday (exc. Bank Holidays in England & Wales.

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3. Term

This Agreement shall commence or be deemed to have commenced on the Effective Date and shall run for the Initial Term unless terminated in accordance with clause 17.

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4. Scope of Services and Service Levels

4.2 Planned interruptions to the Services shall only be made in accordance with the requirements of the Scope of Work. OIT shall use reasonable efforts to notify the Customer in advance of any such interruptions. Such planned interruptions shall be scheduled only when, in the reasonable opinion of OIT and agreed with the customer, they are necessary to maintain or improve the Services and will be scheduled, so far as OIT is able, to have the minimum impact on the Services.

4.3 The Customer acknowledges that there may be emergency situations where, acting in the best interests of the Customer and in good faith, OIT must interrupt or suspend the Services at short notice. In such situations OIT shall give the Customer as much notice as is reasonably possible of any such suspension or interruption and shall use its best endeavours to keep the time the System is not operating to a minimum and outside of core business hours and at a time agreed with the customer. OIT shall not be liable for any such emergency interruptions or suspensions and any service levels shall be suspended.

4.4 Times when the System(s) are not available due to Customer acts or omissions will be excluded from Service Hours and the calculation of Service Level statistics.

4.5 Should the Customer request any services that fall outside the scope of the Services or the Service Hours OIT shall review any such request and shall use reasonable efforts to accommodate the request but is under no obligation to do so. If any additional services are provided, such additional Services will be provided in accordance with OIT’s then applicable time and materials rate of charge unless otherwise agreed in writing.

4.6 Where OIT agrees to provide any additional Services in accordance with clause 4.5 the Customer agrees to indemnify OIT against any and all reasonable costs OIT may incur with third parties in providing such additional Services up to the value of the contract. OIT reserves the right to require the Customer to pay for some or all of the additional Services in advance of them being provided and OIT shall not be liable for any losses that the Customer may suffer if it fails to comply with any such request.

4.7 The Customer acknowledges that to provide certain aspects of the Services OIT is reliant on third party suppliers. As a result, there may be situations where such third-party suppliers, for reasons outside of OIT’s control, cease to provide their services, rendering OIT unable to deliver some or all of the Services. In such circumstances OIT will give the Customer as much notice as OIT reasonably can of such situation and shall use all reasonable endeavours to find a replacement supplier of the services to enable OIT to continue to provide the Services. In the event OIT is unable to find a replacement supplier on terms that are reasonably acceptable to OIT then either party shall be entitled to terminate this Agreement on written notice to the other party.

4.8 The Customer acknowledges and agrees that OIT shall be entitled to change the way in which the Services are delivered subject to OIT ensuring that any changes to the way in which the Services are supplied having no material adverse effect on the Customer.

4.9 Location of Services: The Scope of Work shall outline whether the services are being provided as an On-Site Service or an Off-Site Service.

4.10 Hardware Maintenance Service

4.10.1 – The Customer shall throughout the term of this Agreement take out and maintain maintenance cover with a reputable maintenance contractor for the Hardware that provides for full parts replacement. The Customer shall provide copies of any such agreements to OIT as soon as reasonably practicable following the commencement of the Services or, if later, following the entering into of any such agreement.

4.10.2 – Subject to clause 4.10.1, OIT shall perform all the terms of the said maintenance cover taken out by the Customer as agent for and on behalf of the Customer and the Customer shall reimburse OIT any exceptions costs, being costs that the Customer is liable for under such contracts but OIT incurs acting on behalf of the Customer, incurred in the performance of its obligations under this clause.

4.10.3 – OIT’s obligation to act as agent for and on behalf of the Customer in respect of the said maintenance cover shall be subject to:

4.10.3.1 the Customer obtaining the consent of the maintenance provider to OIT acting as its agent;

4.10.3.2 upon receipt of a written request from OIT to do so, the Customer assisting OIT in enforcing the terms of the maintenance cover contract against the maintenance provider. The Customer shall bear its own costs in this regard;

4.10.3.3 the Customer being responsible for payment of all fees falling due in respect of the said maintenance cover.

4.11 Service Helpdesk: Providing this has been detailed within the Scope of Work, OIT will provide the Customer with a Service Desk for routing, management, escalation, logging and resolution of Helpdesk calls. The scope of this service is detailed within the Scope of Work.

4.12 Cyber Security and Cyber Breaches: In the event of a security and/or cyber breach of the Customer’s Systems OIT shall provide such reasonable assistance to the Customer in remedying such breach. The Customer acknowledges that where such breach is caused by the actions of the Customer, its employees, agents or representatives (whether by deliberate action, negligence or willful neglect), or the actions of a third party outside the control of OIT (such as a hacker, denial of service attack or phishing attack), OIT shall be entitled to charge the Customer for its time and costs in remedying such breach, such costs on a time and materials basis in accordance with the Rate Card.

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5. The System(s)

5.1 TITLE AND ACQUISITION COSTS

5.1.1 OIT shall gain no title to or interest in nor any other Intellectual Property Rights (save as expressly stated in this Agreement) in the System(s) or the Customer owned Intellectual Property in the Scope of Work or the Third Party Products in the Scope of Work in this Agreement.

5.1.2 The Customer shall be responsible for all costs of acquiring and maintaining any necessary third party licences or consents permitting the use thereof by OIT in connection with the performance of its obligations under this Agreement.

5.2 LICENCES

5.2.1 The Customer hereby grants to OIT, with effect from the Effective Date for the duration of this Agreement, a non-exclusive, royalty-free licence to use, operate, copy, and modify with the Customer’s prior agreement, the Customer Intellectual Property for the purpose of fulfilling OIT’s obligations under this Agreement.

5.2.2 The parties shall co-operate to obtain all necessary licences or consents of third parties to the use by OIT of the Third Party Products and (if necessary) the Hardware. If the parties fail to obtain such consent or if the Customer determines that the cost of obtaining such consent is unreasonable, the parties shall co-operate to agree alternative Hardware/Third Party Products which may replace those in respect of which consent has not been or cannot, except at an unreasonable cost, be obtained.

5.2.3 The Customer hereby grants to OIT its consent for OIT to use and operate OIT-provided Software on the Hardware to the extent that it is strictly necessary in connection with the performance of its obligations under this Agreement.

5.3 LEASED EQUIPMENT

5.3.1 Where specified in the Scope of Work, OIT will purchase certain parts of the System on behalf of the Customer (“Leased Equipment”) and shall lease such Leased Equipment to the Customer at the rates outlined in the Scope of Work.

5.3.2 Title to the Leased Equipment shall remain with OIT at all times. Subject to the agreement of OIT the Customer shall have the right to have ownership of the Leased Equipment transferred to the Customer upon payment of all charges in respect of such Leased Equipment.

5.3.3 It shall be the responsibility of the Customer to ensure that it has adequate insurance in place with regard to the Leased Equipment and the Customer shall indemnify OIT against any losses or damage caused to the Leased Equipment whilst it is under the Customer’s control.

5.3.4 In respect of any defective Leased Equipment, OIT shall, at its option, repair or replace such defective Leased Equipment or refund the price of the defective Leased Equipment. OIT shall have no obligation to do so where the defect is caused by the Customer altering or repairing the Leased Equipment without OIT’s consent or arises as a result of fair wear and tear.

5.4 OPERATION

5.4.1 OIT warrants that, so far as it is able the Services will be performed:

5.4.1.1 in such a way as not to cause any fault or malfunction in the System(s) (or any related software or System(s) of the Customer);

5.4.1.2 in such a way as not to cause any interruption to the business processes of the Customer (other than any agreed and unavoidable interruption which is required in order to perform the Services in a proper and efficient manner); and

5.4.1.3 in accordance with all applicable laws and regulations;

5.4.2 the possession or use of the System(s) and/or OIT-provided Software or any other software provides over the term of this Agreement will not infringe the Intellectual Property Rights of any third party; and

5.4.3 at the date of this Agreement, OIT has obtained and will maintain for the duration of this agreement all permissions, licences and consents necessary for OIT to perform the Services.

5.4.4 The Services will conform materially with all descriptions and specifications set out in this Agreement and Service Level Agreement.

5.4.5 will provide the services with reasonable skill, care and diligence as experts specialising (inter alia) in the provision of computer facilities management services.

5.4.6 will provide the Services in accordance with any IT policies of the Customer, provided that they are notified to OIT in writing and the policies are reasonable in nature.

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6. Insurance

It shall at all times be the responsibility of the Customer to insure the System(s).

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7. OIT Responsibilities

7.1 OIT will comply (and will procure that its employees, agents and sub-contractors comply) with the Customer’s health and safety and security policies whilst working at the Customer’s Premises provided that the policies are notified to OIT and/or communicated to those of its employees, agents and subcontractors providing the Services from time to time.

7.2 OIT shall be responsible for obtaining any necessary consents/licences from third parties to enable the use of OIT-provided Software in connection with the provision of the Services.

7.3 OIT shall provide the Customer with all relevant information and documentation subject to any relevant confidentiality obligations.

7.4 OIT shall provide proper environmental conditions for the System(s) in accordance with advice received from time to time from the relevant manufacturer/supplier.

7.5 In the provision of the Services, OIT shall use personnel who possess the degree of skill and experience that is appropriate to the task to which they are allocated and who shall perform these tasks in a workmanlike and professional manner.

7.6 OIT will co-operate so far as reasonably possible with the Customer’s employees and all independent contractors and third party suppliers in matters directly concerned with the provision of the Services.

7.7 OIT will provide all the assistance that the Customer reasonably requires from time to time for the purpose of evaluating OIT’s conformance to the Scope of Work.

7.8 OIT shall not use any part of the System(s) either for its own benefit or for the benefit of any other customer of OIT or any other person or company.

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8. Customer Responsibilities

8.1 The Customer shall:

8.1.1 allow OIT’s employees, agents and sub-contractors access to the Customer’s Premises and the System(s) to the extent that it is reasonably required for the Off-site Services. Access to the Customer’s Premises shall be subject to compliance with clause 7.1 of this Agreement and the Customer reserves the right to exclude persons from the Customer’s Premises in the event of breach or threatened breach of clause 7.1 of this Agreement;

8.1.2 ensure that its employees co-operate insofar as reasonably possible with OIT’s employees, agents and sub-contractors and all independent contractors and third party suppliers in connection with OIT’s provision of the Services;

8.1.3 subject to any relevant confidentiality obligations, provide OIT with all relevant information and documentation;

8.1.4 make available office and secretarial facilities to any OIT employees, agents or sub-contractors working at the Customer’s Premises to the extent that it is reasonably required for OIT to provide the Services;

8.1.5 in each case free of charge and so far as they may be necessary for the proper performance of OIT’s obligations under this Agreement.

8.2 The Customer shall provide proper environmental conditions for the System(s) in accordance with advice received from time to time from OIT or the relevant manufacturer/supplier.

8.3 The Customer shall use its best endeavours to ensure that at all times during Service Hours at least one of its employees is available to make decisions concerning the provision of the Services.

8.4 The Customer shall maintain throughout the term of this Agreement contracts of employment or service with such number of suitably qualified and experienced persons as may be necessary to assist in the provision of the Services.

8.5 The Customer shall be responsible for providing managing and maintaining all communications equipment required to provide access to the System(s) from the Customer’s business premises and for the costs of operating the same (for example, line rental and call charges).

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9. Non-Solicitation of Staff

9.1 Neither party shall during the term of this Agreement and for a period of 6 months after termination (howsoever occurring) engage or offer to directly engage any of the other party’s staff who have been engaged in the provision of the Services or the performance of this Agreement without having first sought and gained the express written consent of the other party.

9.2 Pursuant to the situation in clause 9.1 a party shall pay to the other party a fee equal to 12 months’ salary for any employee of the other party that accepts an offer of employment directly from the first party during the term of this Agreement or during the period of 6 months after termination (howsoever occurring).

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10. Data

10.2 The Data will be at all times the sole property and under the sole control of the Customer with OIT acting as the Customer’s processor.

10.3 OIT shall not: (a) use the Data or information or reproduce the Data or information in whole or in party in any form except as any be required by this Agreement; or (b) disclose the Data or information to any third party or persons not authorised by the Customer to receive it, except with the prior written consent of the Customer; or (c) alter, delete, add to or otherwise interfere with the Data or information (save where expressly required to do so by the terms of this Agreement).

10.4 OIT shall follow its back-up and archiving procedures for the Customer’s data, as set out in the Scope of Work. In the event of any loss or damage to data, the Customers sole and exclusive remedy shall be for OIT to use reasonable commercial endeavours to restore the lost or damaged data from the latest back-up of such data maintained by OIT. OIT shall not be responsible for any loss, destruction, alteration or disclosure of the data caused by any third party (except those third parties sub-contracted by OIT to perform services related to data maintenance and back-up) or any fault in any Hardware or Systems that is outside of OIT’s control.

10.5 Without prejudice to its obligations as data processor under the Data Protection Legislation, OIT shall take reasonable precautions for the security or integrity of Data during its transmission via public telecommunications facilities, the Internet or similar.

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11. Intellectual Property Rights

11.1 All Intellectual Property Rights belonging to parties prior to the Effective Date shall remain vested in that party. Unless otherwise agreed by the parties in writing, all Intellectual Property Rights in any material or items produced by OIT solely in the course of providing the Services under this Agreement and not specifically identified within the Scope of Work shall vest in OIT.

11.2 OIT hereby grants to the Customer such licences to use the Intellectual Property Rights referred to in clause 11.1 as are necessary from time to time to enable the Customer to receive the benefit of the Services as contemplated in this Agreement but not further or otherwise.

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12. Confidentiality

12.1 Each party shall treat as confidential all information obtained from the other party pursuant to this Agreement which is marked “confidential” or which the recipient ought reasonably to know is confidential, and shall not divulge such information to any person (except to such party’s own employees, agents or sub-contractors and then only to those employees, agents or sub-contractors who need to know the same) without the other party’s prior written consent.

12.2 For the avoidance of doubt, it is hereby expressly agreed that the Data shall be regarded as confidential information for the purposes of this clause 12.

12.3 The foregoing obligations of confidentiality shall survive termination of this Agreement.

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13. Change Control Procedures

13.1 Changes to the nature of the Services or the Service Levels or the Charges will only be made in accordance with the change control procedures set out in the Scope of Work or as expressly set out herein.

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14. Charges and Payment Terms

14.1 The Customer agrees to pay the Charges detailed in the Scope of Work in accordance with the payment terms set out therein.

14.2 OIT reserves the right to require the Customer to pay a deposit in respect of some, or all, of the Charges for the Initial Term (the ‘Deposit’). The Deposit shall be returned to the Customer at the end of the Initial Term subject to all Charges the owing having been paid in full.

14.3 OIT shall be entitled to use some, or all, of the Deposit in the event that the Customer fails to pay any Charges as they fall due, during the Initial Term, or in the event of any termination of this Agreement, for any reason, at any point during the Initial Term.

14.4 If there is a variation in the Charges as a result of the change control procedures contained in the Scope of Work or as a result of clause 13 of this Agreement, the variation will be apportioned pro rata on the basis of a 365-day year.

14.5 During the Initial Term the total monthly Service Charge payable will not at any time, without the prior written agreement of OIT, fall below eighty five percent (85%) of the amount specified in the Scope of Work, irrespective of any changes to the Services agreed by the parties in accordance with the variation clauses.

14.6 The Customer agrees that if their use of the Services exceeds Fair Use then OIT shall be entitled to charge such additional charges, on a time and materials basis calculated in accordance with its Rate Card, for any Services delivered above Fair Use.

14.7 The Customer agrees to pay travel, hotel and subsistence expenses that are chargeable to the Customer, provided that these are reasonably incurred in providing the Services and are agreed in advance. The Customer shall not pay expenses for alcohol, hotel videos or services. Travel will be second class and hotel accommodation will be three star or equivalent. Mileage shall be charged at 45p per mile. Such expenses will be invoiced by OIT monthly in arrears and invoices will be supported by receipts or other appropriate documentary evidence. The Customer agrees to pay the invoices in accordance with the payment terms detailed in the Scope of Work.

14.8 Charges due to OIT will be invoiced by OIT monthly in advance by Direct Debit unless otherwise agreed. The Customer agrees to pay the invoices in accordance with the payment terms detailed in the Scope of Work

14.9 All charges quoted are expressed to be exclusive of Value Added Tax (or any similar tax), which will be charged to the Customer at the rate that is current at the date of invoice.

14.10 OIT shall be entitled to increase the Charges by giving the Customer not less than 4 weeks’ written notice of any such increase. OIT shall not be entitled to increase the Charges more frequently than once per contract year and such increases shall be capped at an amount no greater than the rate of inflation, as measured by the Consumer Price Index as published the month immediately preceding the month in which the notice of increase in Charges is sent.

14.11 OIT may charge interest on late payments at the rate of 2% per annum above the base rate from time to time of National Westminster Bank plc (which shall accrue from the date due for payment to the actual date of payment), provided that OIT has provided the Customer with 7 days written notice of its intention to charge interest on the late payment and has allowed the Customer a further 7 days in which to settle any such late payments. However, OIT will not charge interest on any payment that is late either because the Customer has raised a concern about the associated charge or invoice which OIT has agreed to address, or because the parties have accepted that the associated charge or invoice is the subject of a legitimate dispute between the parties.

14.12 Without prejudice to any other rights of OIT arising from the Customer’s late, or non-payment of any invoice or Charges, in the event of the Customer failing to pay any invoices or Charges as outlined this Agreement OIT shall be entitled, on giving the Customer not less than 10 days’ written notice, to suspend the performance of any or all of the Services until such time as all monies outstanding, including any interest, are paid in full. The Customer agrees to indemnify OIT against and all costs incurred by OIT as a result of any such suspension, including, but not limited to, any payments made to third parties to restore the Services and OIT’s reasonable costs in restoring the Services.

14.13 Unless otherwise expressly agreed between the parties, the charges and such other amounts expressed to be payable by the Customer under this Agreement shall constitute the Customer’s entire payment liability to OIT under this Agreement and OIT hereby indemnifies the Customer against any liability to any third party for costs or charges relating to the Services.

14.14 This contract reserves the right for Optimising IT Ltd to implement an annual price review inline with the Retail Price Index (RPI) on all support and service charges, which may result in a price increase. If Optimising IT deems it necessary, these price increases will be implemented on 1 April each calendar year throughout your minimum contractual term.

Services that are sourced through third party suppliers are subject to their individual pricing and terms and conditions, and are therefore beyond our control. Where third party prices are increased we will inform you in a timely manner, giving reasonable notice to any price increases to the third party services transacted by Optimising IT.

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15. Indemnities

15.1 OIT IPR Indemnity OIT hereby agrees at its own expense to defend or settle any claim or action that the use or possession of any OIT- provided Software or other material and/or software provided by OIT to the Customer or any part of them infringes the Intellectual Property Rights of a third party and to fully indemnify and hold harmless the Customer (once the necessary changes have been made, all other things remaining) The indemnity contained in this clause 19.2 shall remain in full force and effect notwithstanding any termination of this Agreement.

15.2 Breach of Agreements relating to Third Party Products OIT undertakes to the Customer fully to indemnify and keep indemnified the Customer on demand against all reasonable losses, damages, costs, actions, awards, proceedings, claims, demands, liabilities and expenses (including, reasonable legal and other professional fees and expenses limited to £500,000) which the Customer may suffer, sustain, incur, pay or be put to by reason or on account of or arising from OIT’s failure to adhere to the terms and conditions of agreements between the Customer and third party suppliers relating to Third Party Products where OIT has been supplied in advance with full copies of those agreements.

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16. Limitation of Liability

16.1 This clause 16 sets out the entire financial liability of OIT (including any liability for the acts or omissions of its employees, agents and subcontractors) to the Customer in respect of:

(a) any breach of this Agreement;

(b) any use made by the Customer of the Services; and

(c) any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including negligence) arising under or in connection with this agreement.

16.2 Neither party limits its liability for death or personal injury caused by its negligence or that of its employees, agents or sub-contractors, or for fraud.

16.3 The liability of each party in respect of loss of or direct physical damage to tangible property belonging to the other party shall be limited to £2 million in relation to each default.

16.4 Provided that OIT fulfils its obligations under the Scope of Work in respect of back-ups and its obligations under clause 10.4 in respect of reconstruction of Data, OIT shall have no liability for any loss or spoiling of Data, Customer Intellectual Property or Third Party Products, except where such loss or spoiling is caused by a negligent act or omission by OIT.

16.5 OIT shall not be liable for deficiencies in the Services or failure to achieve the Service Levels or any loss, damage or expense suffered or incurred by the Customer to the extent resulting from:

(a) Customer acts or omissions;

(b) any defect or deficiency in the Hardware provided that OIT has fulfilled its obligations under clause 4.9;

(c) any defect or deficiency in the Third Party Products, the Customer Intellectual Property or the Customer’s Premises;

(d) non-performance by a third party of its obligations under an agreement with the Customer relating to any of the Third Party Products.

16.6 Except as expressly and specifically provided in this agreement:

(a) the Customer assumes sole responsibility for results obtained from the use of the Services, and for conclusions drawn from such use. OIT shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to OIT by the Customer in connection with the Services, or any actions taken by OIT at the Customer’s direction;

(b) all warranties, conditions and other terms implied by statute, common law or otherwise are, to the fullest extent permitted by law, excluded from this agreement;

(c) the Customer’s sole and exclusive remedy for any Service Level failings shall be the payment of any service credits outlined in the Scope of Work; and

(d) Liability under any indemnity in this Agreement shall be uncapped and unlimited.

16.7 Subject to clauses 16.1, 16.3 and 16.4:

(a) OIT shall not be liable whether in contract, tort (including for negligence or breach of statutory duty), misrepresentation (whether innocent or negligent), restitution, or otherwise for any loss of profits, loss of business, depletion of goodwill or similar losses, or pure economic loss, or for any indirect or consequential loss, costs, damages, charges or expenses however arising; and

(b) OIT’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement shall be limited to the greater of £200,000; or the Charges paid for the Services during the 12 months preceding the date on which the claim arose.

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17. Termination

17.1 Either party may terminate this agreement by giving the other not less than 6 months’ notice (“Notice Period”) (or otherwise specified period in the Scope of Work) in writing, such notice to expire no sooner than the end of the Initial Term

17.2 Either party may terminate the whole of this Agreement forthwith by giving notice in writing to the other if the other party:

(a) commits a material breach of this Agreement (which, for the avoidance of doubt, includes failure by the Customer to pay any sums due to OIT within 30 days of the due date) and, in the case of a breach capable of being remedied, shall have failed within 30 days after the receipt of a request in writing from the other party so to do, to remedy the breach (this request to contain a warning of the relevant party’s intention to terminate);or

(b) shall have a receiver or administrative receiver appointed of it or over any part of its undertaking or assets or shall pass a resolution for winding up (otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction) or a court of competent jurisdiction shall make an order to that effect or shall enter into any voluntary arrangement with its creditors or shall become subject to an administration order.

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18. Effects of Termination and Assistance on Termination

18.1 OIT and the Customer acknowledge that, on the expiry or termination of the whole of this Agreement (for whatever reason), there may be a subsequent transfer of the Services to the Customer or to a replacement contractor (the “Replacement Contractor”). Upon written request by the Customer, and provided termination is not for reasons of breach by the Customer, OIT will do all acts and things reasonably requested by the Customer and will act in good faith to the extent necessary to ensure a satisfactory hand-over of the Services to the Customer or to the Replacement Contractor. The Customer may request such assistance from OIT from the date at which notice to terminate is served by either party and up to 12 weeks after the date of termination. Such assistance will be provided at OIT’s then applicable time and materials rates of charge.

18.2 On termination of the whole of this Agreement:

(a) each party undertakes to return to the other party any equipment, documentation, information or other materials belonging to the other party;

(b) OIT shall, at the Customer’s request and cost, either:

(i) return to the Customer, in such format as the Customer reasonably requests, all Customer Intellectual Property and all copies of Customer Intellectual Property that it may have stored on storage media in its possession or on any of its own computer System(s)s; or

(ii) erase all Customer Intellectual Property and all copies of Customer Intellectual Property that it may have stored on storage media in its possession or on any of its own computer System(s)s. OIT will not reproduce Customer Intellectual Property in any way;

(c) OIT must promptly return to the Customer (or at the Customer’s request, destroy) Data, passwords, user filenames or IDs and any other information relating to access (remote or otherwise) to the System(s) by OIT or any of its employees, agents or subcontractors.

18.3 Termination of this Agreement shall be without prejudice to any accrued rights and outstanding obligations of either party at the date of termination.

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19. General Contract Provisions

19.2 All notices which are required to be given under this Agreement can be provided by email or in writing and shall be sent or emailed to the finance team ([email protected]). Address detail will be the address set out at the top of this Agreement or such other address as may be designated during the term of this Agreement.

19.3 Neither party shall be entitled to assign any of its rights and obligations under this Agreement without the prior written consent of the other party, such consent not to be unreasonably withheld.

19.4 This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

19.5 Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement.

19.6 In the event of any conflict between the terms set out in the main body of this Agreement and those set out in any of the Scope of Work hereto, the terms set out in the Scope of Work will prevail.

19.7 No amendment or variation to any provision of this Agreement shall be effective unless made in writing and signed by authorised representatives of both parties.

19.8 No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

19.9 If any provision of this Agreement shall be void or unenforceable by reason of any provision of applicable law, it shall be deleted and the remaining provisions of this Agreement shall continue in full force and effect and, if necessary, be amended as shall be necessary to give effect to the spirit of the Agreement as far as possible.

19.10 This Agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement. 19.11 This Agreement shall be governed by and construed in accordance with the laws of England and the parties hereby irrevocably submit to the exclusive jurisdiction of the English courts.