Service Terms and Conditions
Published Date: 10th March 2022
Document Version: 1.0
Terms applicable to the supply of all Services
- Scope of Services and Service Levels
- The System(s)
- OIT Responsibilities
- Customer Responsibilities
Terms applicable to the supply of Hardware and Equipment
- Quantity and description of Equipment
- Delivery of Equipment and acceptance
- Risk and property
- Software licence
- Hardware Pricing
- Force Majeure
Terms applicable to the supply of Professional Services
Optimising IT Ltd (“OIT”) company registration number 6864178, whose registered office is at Twigworth Court Business Centre, Twigworth, Gloucester, GL2 9PG (“Supplier”) and the (“Customer”) as defined in the Scope of Work.
- Definitions and Interpretation
2.1 In this Agreement, unless the context otherwise requires, the following expressions have the following meanings:
“Advanced Service Level Agreement” means the advanced service level agreement, added as an optional extra to the standard service level terms contained in the Scope of Work, included as a Schedule to these terms and conditions;
“this/the Agreement” means these terms and conditions including the Scope of Work, the DPA, and any relevant Schedule;
“Charges” means the periodic charges payable in consideration for the Services as outlined in the Proposal and referred to in Clause 23;
“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;
“DPA” means the data processing agreement attached to these terms and conditions which shall be deemed entered into by the parties upon the signing of the Summary Terms of the Agreement;
“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);
“Equipment” means any equipment agreed in the Contract to be purchased by the Customer from OIT (including without limitation any part or parts of it).
“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;
“Hardware Maintenance Service” means the hardware maintenance service described in Clause 4.9;
“Initial Term” means the term specified as such in the Scope of Work;
“Intellectual Property Rights” means all rights arising by virtue of or in relation to copyrights, inventions, patents, trademarks (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;
“Project” means the project for the performance of the Services as described in the Project Plan;
“Project Milestone” means a date by which a part of the Project is estimated to be completed, as set out in the Project Plan;
“Project Plan” means the plan describing the Project and setting out the estimated timetable (including without limitation Project Milestones) and responsibilities of each of the parties for, or in connection with, the provision of the Services by OIT in accordance with the Contract;
“Service Hours” means the hours specified as such in the Scope of Work;
“Services” means the services to be provided to the Customer by OIT, pursuant to these terms and conditions, 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;
“Software” means any operating system installed on the Equipment.
“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.
2.2 In the event of any conflict between the terms contained in these terms and conditions, and anything contained in the Scope of Work or any Schedule, the documents shall be read in the following order:
(i) the Scope of Work;
(ii) the Schedule
(iii) these terms and conditions.
3.1 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 26.
- Scope of Services and Service Levels
4.1 OIT will provide the Services during the Service Hours in accordance with the terms of this Agreement. Where the Customer has selected the Advance Service Level Agreement OIT shall provide the Services in accordance with the terms of the Advance Service Level Agreement.
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 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 Hardware Maintenance Service
4.9.1 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.
4.9.2 Subject to clause 4.9.1, 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.
4.9.3 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:
18.104.22.168 the Customer obtaining the consent of the maintenance provider to OIT acting as its agent;
22.214.171.124 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;
126.96.36.199 the Customer being responsible for payment of all fees falling due in respect of the said maintenance cover.
4.10 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.
4.11 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, or inaction, of the Customer, its employees, agents or representatives (whether by deliberate action, negligence or wilful 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 in the Scope of Work.
- 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.
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.
5.2.1 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 always remain with OIT. 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 regarding 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.
- OIT Responsibilities
6.1 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.
6.2 OIT warrants that, so far as it is able:
6.2.1 the Services will be performed:
188.8.131.52 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);
184.108.40.206 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
220.127.116.11 in accordance with all applicable laws and regulations;
6.2.2 the possession or use of the System(s) and/or OIT-provided Software will not infringe the Intellectual Property Rights of any third party; and
6.2.3 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.
6.2.4 The Services will conform materially with all descriptions and specifications set out in this Agreement.
6.2.5 will provide the services with reasonable skill, care and diligence as experts specialising in the provision of computer facilities management services.
6.2.6 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.
6.3 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.
6.4 OIT shall provide the Customer with all relevant information and documentation subject to any relevant confidentiality obligations.
6.5 OIT shall provide proper environmental conditions for the System(s) in accordance with advice received from time to time from the relevant manufacturer/supplier.
6.6 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.
6.7 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.
6.8 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.
6.9 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.
- Customer Responsibilities
7.1 The Customer shall:
7.1.1 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 6.1 and the Customer reserves the right to exclude persons from the Customer’s Premises in the event of breach or threatened breach of clause 6.1;
7.1.2 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;
7.1.3 subject to any relevant confidentiality obligations, provide OIT with all relevant information and documentation;
7.1.4 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;
7.1.5 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.
7.2 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.
7.3 It shall always be the responsibility of the Customer to insure the System(s).
7.4 The Customer shall use its best endeavours to always 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.
7.5 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.
7.6 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).
Terms applicable to the supply of hardware
- Quantity and description of Equipment
8.1 The quantity and description of the Equipment shall be as set out in OIT’s quotation.
8.2 All samples, drawings, descriptive matter, specifications, and advertising issued by OIT, and any descriptions or illustrations contained in OIT’s catalogues or brochures are issued or published for illustrative purposes only and they do not form part of the Contract.
8.3 Any typographical, clerical, or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by OIT shall be subject to correction without any liability on the part of OIT.
8.4 OIT reserves the right (but does not assume the obligation) to make any changes in the specification of the Equipment which are required to conform with any applicable legislation or, where the Equipment is to be supplied to the Customer’s specification, which does not materially affect their quality or performance. Where OIT is not the manufacturer of the Equipment, OIT shall use reasonable endeavours to transfer to the Customer the benefit of any warranty or guarantee given by the manufacturer to OIT.
8.5 OIT’s employees, contractors and agents are not authorised to make any representations or contractually binding statements concerning the Equipment.
- Delivery of Equipment and acceptance
9.1 OIT shall use its reasonable endeavours to deliver the Equipment on the date or dates specified in OIT’s acknowledgement of order, but any such date is approximate only. If no dates are so specified, delivery shall be within a reasonable time of acceptance of the order. Time is not of the essence as to the delivery of the Equipment and OIT is not in any circumstances liable for any delay in delivery, however caused.
9.2 OIT may deliver the Equipment by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions of the applicable Contract.
9.3 Delivery shall be made during normal business hours (excluding bank or public holidays). OIT may levy additional charges for any deliveries made outside such hours at the Customer’s request.
9.4 The Customer shall be responsible (at the Customer’s cost) for preparing the delivery location for the delivery of the Equipment and for the provision of all necessary access and facilities reasonably required to deliver and install the Equipment. If OIT is prevented from carrying out delivery or installation on the specified date because no such preparation has been carried out, OIT may levy additional charges to recover its loss arising from this event.
9.5 The Customer shall be deemed to have accepted the Equipment when the Customer has had 14 days to inspect it after delivery and has not exercised in writing its right of rejection in accordance with Clause 12.
9.6 OIT shall be responsible for any damage, shortage, or loss in transit provided that the Customer notifies it to OIT (or its carrier, if applicable) within three days of delivery or the proposed delivery date of the Equipment and that the Equipment has been handled in accordance with OIT’s stipulations.
9.7 Any remedy under this condition shall be limited, at the option of OIT, to the replacement or repair of any Equipment which is proven to OIT’s satisfaction to have been lost or damaged in transit.
- Risk and property
10.1 The Equipment shall be at the risk of OIT until delivery to the Customer at the place of delivery specified in OIT’s acknowledgement of order. OIT shall off-load the Equipment at the Customer’s risk.
10.2 Ownership of the Equipment shall pass to the Customer on the later of completion of delivery (including without limitation off-loading), or when OIT has received in full in cleared funds all sums due to it in respect of the Equipment.
10.3 Until ownership of the Equipment has passed to the Customer under condition 10.2, the Customer shall:
(a) hold the Equipment on a fiduciary basis as OIT’s bailee;
(b) store the Equipment (at no cost to OIT) in satisfactory conditions and separately from all the Customer’s other equipment or that of a third party, so that it remains readily identifiable as OIT’s property;
(c) not destroy, deface, or obscure any identifying mark or packaging on or relating to the Equipment; and
(d) keep the Equipment insured on OIT’s behalf for its full price against all risks with a reputable insurer to the reasonable satisfaction of OIT, ensure that OIT’s interest in the Equipment is noted on the policy, and hold the proceeds of such insurance on trust for OIT and not mix them with any other money, nor pay the proceeds into an overdrawn bank account.
10.4 The Customer’s right to possession of the Equipment before ownership has passed to it shall terminate immediately if any of the circumstances set out in Clause 13 arise or if the Customer encumbers or in any way charges the Equipment, or if the Customer fails to make any payment to OIT on the due date.
10.5 Until ownership of the Equipment is transferred to the Customer in accordance with clause 10.2, the Customer grants OIT, its agents and employees an irrevocable licence at any time to enter any premises where the Equipment is or may be stored in order to inspect it, or where the Customer’s right to possession has terminated, to remove it. All costs incurred by OIT in repossessing the Equipment shall be borne by the Customer.
10.6 On termination of the Contract for any reason, OIT’s (but not the Customer’s) rights in this clause 10 shall remain in effect.
- Software licence
11.1 If OIT refers to a software licence in the acknowledgement of order, the price of the Equipment includes the licence fee for the Customer’s right to use the Software unless otherwise stated, or the licence is quoted separately.
11.2 If the Customer is provided with any operating system software licence in respect of the Software, the Customer shall sign and return it to OIT within seven days of installation of the software, unless the licence has been supplied on a “shrink-wrap” or “click-wrap” basis.
11.3 If no software licence has been provided to the Customer, the Customer hereby accepts a non-exclusive, non-transferable licence to use the Software on the following conditions:
(a) the Customer shall not copy (except to the extent permissible under applicable law which is not capable of exclusion by agreement) or for normal operation of the Equipment), reproduce, translate, adapt, vary, or modify the software, nor communicate it to any third party, without OIT’s prior written consent;
(b) the Customer shall not use the Software on any equipment other than the Equipment, and shall not remove, adapt, or otherwise tamper with any copyright notice, legend or logo which appears in or on the Software on the medium on which it resides;
(c) such licence shall be terminable by either party on 28 days’ written notice, provided that OIT terminates only if the continued use or possession of the Software by the Customer infringes the developer’s or a third party’s rights, or OIT is compelled to do so by law, or if the Customer has failed to comply with any term of the Contract; and
(d) on or before the expiry of this licence, the Customer shall return to OIT all copies of the Software in its possession.
12.1 OIT warrants to the Customer that the Equipment is free from defects of workmanship and materials. OIT undertakes (subject to the remainder of this Clause 12), at its option, to repair or replace Equipment (other than consumable items) which is found to be defective as a result of faulty materials or workmanship within six months of delivery and installation.
12.2 OIT shall not in any circumstances be liable for a breach of the warranty contained in Clause 12.1 unless:
(a) the Customer gives written notice of the defect to OIT within seven days of the time when the Customer discovers or ought to have discovered the defect; and
(b) after receiving the notice, OIT is given a reasonable opportunity of examining such Equipment and the Customer (if asked to do
so, by OIT) returns such Equipment to OIT’s place of business at the OIT’s cost for the examination to take place there.
12.3 OIT shall not in any circumstances be liable for a breach of the warranty in Clause 12.1 if:
(a) the Customer makes any use of Equipment in respect of which it has given written notice; or
(b) the defect arises because the Customer failed to follow OIT’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Equipment or (if there are none) good trade practice; or
(c) the Customer alters or repairs the relevant Equipment without the written consent of OIT.
12.4 Any repaired or replacement Equipment shall be under warranty for the unexpired portion of the six-month period.
12.5 OIT shall not in any circumstances be liable for any damage or defect to the Equipment caused by improper use of the Equipment or use outside its normal application.
13.1 OIT shall not in any circumstances be liable for any non-delivery of Equipment (even if caused by OIT’s negligence) unless the Customer notifies OIT in writing of the failure to deliver within seven days after the communicated delivery date.
13.2 Any liability of OIT for non-delivery of the Equipment shall in all circumstances be limited to replacing the Equipment within a reasonable time or issuing a credit note at the pro rata contract rate against any invoice raised for such Equipment.
13.3 If OIT’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer (other than by reason of a Force Majeure Event under Clause 15), the Customer shall in all circumstances be liable to pay to OIT all reasonable costs, charges or losses sustained by it as a result, subject to OIT notifying the Customer in writing of any such claim it might have against the Customer in this respect.
13.4 In the event of any claim by the Customer under the warranty given in Clause 12.1, the Customer shall notify OIT in writing of the alleged defect. OIT shall have the option of testing or inspecting the Equipment at its current location or moving it to OIT’s premises (or those of its agent or sub-contractor) at the cost of OIT. If the Customer’s claim is subsequently found by OIT to be outside the scope or duration of the warranty in Clause 12, the costs of transportation of the Equipment, investigation and repair shall be borne by the Customer.
- Hardware Pricing
14.1 All prices shall be as stated in OIT’s quotation and the Customer’s acknowledgement of order. All prices are exclusive of delivery, packaging, packing, shipping, carriage, insurance, VAT and other charges and duties.
14.2 The price of the Equipment shall be OIT’s quoted price or, where no price has been quoted (or a quoted price is no longer valid), the price listed in OIT’s price list current at the date of acceptance of the order. OIT’s published export price list shall apply to exports of the Equipment as appropriate.
14.3 OIT reserves the right, by giving notice to the Customer at any time before delivery, to increase the price of such of the Equipment as has not been delivered to reflect any increase in the cost to OIT which is due to market conditions or any factor beyond the control of OIT (including without limitation any foreign exchange fluctuation, currency regulation, alteration of duties, change in legislation, significant increase in the costs of labour, materials or other costs of manufacture), any change in delivery dates, quantities or specifications for the Equipment which is requested by the Customer, or any delay caused by any instructions of the Customer or failure of the Customer to give OIT adequate information or instructions.
14.4 Subject to any special terms agreed in writing between the Customer and OIT, OIT may invoice the Customer for the price of the Equipment on or at any time before delivery of the Equipment, unless:
(a) the Equipment is to be collected by the Customer; or
(b) the Customer wrongfully fails to take delivery of the Equipment, and in either case, OIT shall be entitled to invoice the Customer for the price at any time after OIT has notified the Customer that the Equipment is ready for collection.
- Force Majeure
OIT reserves the right to defer the date of delivery, or to cancel the Contract or reduce the amount of Equipment ordered if it is prevented from or delayed in carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including without limitation strikes, lock-outs or other industrial disputes (whether involving the workforce of OIT or any other party), failure of a utility service or transport or telecommunications network, an act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors (Force Majeure Event).
Terms applicable to the supply of Professional Services
- OIT’s obligations
16.1 In addition to OIT’s Responsibilities per Clause 6, OIT shall use reasonable endeavours to manage and complete the Project, and to deliver the Deliverables to the Customer, in accordance with all material respects with the Project Plan.
16.2 OIT shall use reasonable endeavours to meet the performance dates specified in the Project Plan, but any such dates shall be estimates only and time shall not be of the essence of the Contract.
16.3 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 wilful 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.
- Customers’ obligations
17.1 In addition to Customers’ Responsibilities per Clause 7, the Customer shall:
(a) co-operate with OIT in all matters relating to the Project and appoint the person/persons who will be the project contact throughout;
(b) provide in a timely manner such as access to the Customer’s premises and data, and such office accommodation and other facilities, as is requested by OIT;
(c) provide in a timely manner such information as OIT may request, and ensure that such information is accurate in all material respects; and
(d) be responsible (at its own cost) for preparing the relevant premises for the supply of the Services.
17.2 If OIT’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer or the Customer’s agents, sub-contractors or employees, the Customer shall in all circumstances be liable to pay to OIT on demand all reasonable costs, charges or losses sustained or incurred by it (including, without limitation, any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property, injury to or death of any person and loss of opportunity to deploy resources elsewhere), subject to OIT confirming such costs, charges and losses to the Customer in writing.
- Change Control
18.1 If either party requests a change to the scope or execution of the Services, OIT shall, within a reasonable time, provide a written estimate to the Customer of:
(a) the likely time required to implement the change;
(b) any variations to OIT’s charges arising from the change;
(c) the likely effect of the change on the Project Plan; and
(d) any other impact of the change on the terms of the Contract.
18.2 If OIT requests a change to the scope of the Services, the Customer shall not unreasonably withhold or delay consent to it.
18.3 If the Customer wishes OIT to proceed with the change, OIT has no obligation to do so unless and until the parties have agreed in writing on the necessary variations to its charges, the Project Plan, and any other relevant terms of the Contract to take account of the change.
- Professional Services Pricing
19.1 Clause 19.2 shall apply if the Services are to be provided on a time-and-materials basis. clause
19.3 and clause 19.4 shall apply if the Services are to be provided for a fixed price. The remainder of this Clause 19 shall apply in either case.
19.2 Where the Services are provided on a time-and-materials basis:
(a) the charges payable for the Services shall be calculated in accordance with OIT’s standard daily fee rates as amended from time to time;
(b) OIT’s standard daily fee rates are calculated on the basis specified in the quotation.
(c) OIT shall be entitled to charge at an overtime rate of 50% of the normal rate for part days and for time worked by members of the project team outside the hours referred to in the Scope of Work on a pro-rata basis; and
(d) OIT shall invoice the Customer monthly in arrears for its charges for time, expenses, and materials (together with VAT where appropriate) for the month concerned, calculated as provided in this clause. Any expenses, materials and third party services shall be invoiced by OIT. Each invoice shall set out the time spent by each member of the project team and, upon request, provide a detailed breakdown of any expenses and materials, accompanied by the relevant receipts where appropriate.
19.3 Where the Services are provided for a fixed price the total price for the Services shall be the amount set out in the Project Plan. The total price shall be paid to OIT in instalments as set out in the Project Plan on its achieving the corresponding Project Milestone. On achieving a Project Milestone, OIT shall invoice the Customer for the charges that are then payable, together with expenses and the costs of materials (and VAT, where appropriate), calculated as provided in clause 19.4.
19.4 Any fixed price contained in the Project Plan excludes:
(a) the cost of a hotel, subsistence, travelling and any other ancillary expenses reasonably incurred by the project team in connection with the Services, and the cost of any materials or services reasonably and properly provided by third parties required by OIT for the supply of the Services. Such expenses, materials and third party services shall be invoiced by OIT; and
(b) VAT, which OIT shall add to its invoices at the appropriate rate.
General contract terms
- Non-Solicitation of Staff
20.1 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.
20.2 Pursuant to the situation in Clause 20.1 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).
- Intellectual Property Rights
21.1 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.
21.2 OIT hereby grants to the Customer such licences to use the Intellectual Property Rights referred to in clause 21.1 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.
22.1 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.
22.2 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 22.
22.3 The foregoing obligations of confidentiality shall survive termination of this Agreement.
- Charges and Payment Terms
23.1 The Customer agrees to pay the Charges detailed in the Scope of Work in accordance with the payment terms set out therein.
23.2 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 within 30 days of the end of the Initial Term subject to all Charges the owing having been paid in full.
23.3 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.
23.4 If there is a variation in the Charges as a result of the change control procedures, or as a result of a change control, the variation will be apportioned pro rata on the basis of a 365-day year, rounded up to a full day.
23.5 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.
23.6 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 the rate card in the Scope of Work, for any Services delivered above Fair Use.
23.7 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.
23.8 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. The payment terms, unless explicitly stated in the Scope of Work, is deemed to be 14 days.
23.9 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.
23.10 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.
23.11 Where any aspect of the Charges relate to payments that OIT is making to a third-party (such as licence fees for Third Party Products) OIT shall be entitled to pass on any increase in the cost to OIT of such Charges, irrespective of whether OIT has already exercised its right to increase the Charges pursuant to clause 23.10 above, by giving the Customer not less than 14 days’ notice of any such increase.
23.12 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.
23.13 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.
24.1 OIT IPR Indemnity
OIT hereby agrees at its own expense to indemnify and hold harmless the Customer against 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. (The indemnity contained in this Clause 24.1 shall remain in full force and effect notwithstanding any termination of this Agreement.
24.2 Breach of Agreements relating to Third Party Products
OIT shall indemnify and keep indemnified the Customer on demand against all reasonable and direct 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, up to date, copies of those agreements.
- Limitation of Liability
25.1 This Clause 25 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.
25.2 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.
25.3 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.
25.4 Provided that OIT fulfils its obligations under the Scope of Work in respect of back-ups and its obligations under the DPA 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.
25.5 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.
25.6 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, unless otherwise stated be uncapped and unlimited.
25.7 Subject to clause 25.1, 20.1 and 20.2:
(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.
26.1 Either party may terminate this agreement by giving the other not less than the Notice Period’s notice in writing, such notice to expire no sooner than the end of the Initial Term. Unless explicitly stated in the Scope of Work, the Notice Period is deemed to be six months.
26.2 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.
- Effects of Termination and Assistance on Termination
27.1 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 the termination is not for reasons of breach by the Customer, OIT will use reasonable endeavours to fulfil acts 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. For the avoidance of all doubt, it shall be the Customer’s responsibility to ensure that it, or the Replacement Contractor, provide OIT with any information it requires to affect the transfer and OIT shall have no liability to the Customer should it, or the Replacement Contractor, fail to provide such information, or where the information is provided, such information is inaccurate or out of date.
27.2 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, in line with the DPA, 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.
27.3 Termination of this Agreement shall be without prejudice to any accrued rights and outstanding obligations of either party at the date of termination.
- General Contract Provisions
28.1 Neither party shall be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for 2 months, the party not affected may terminate this agreement by giving 14 days’ written notice to the affected party.
28.2 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 nominated Account Manager. 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.
28.3 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.
28.4 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.
28.5 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.
28.6 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.
28.7 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.
28.8 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.
28.9 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.
28.10 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.