1.1 Definitions:
Applicable Data Protection Laws:
means:
a) To the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of personal data.
b) To the extent the EU GDPR applies, the law of the European Union or any member state of the European Union to which the Supplier is subject, which relates to the protection of personal data.
Commercially Reasonable Efforts: the same degree of priority and diligence with which the Supplier meets the support needs of its other similar customers.
Client Cause: any of the following causes:
a) any improper use, misuse or unauthorised alteration of the Website by the Client;
b) any use of the Website by the Client in a manner inconsistent with the then-current Documents;
c) the use by the Client of any hardware or software not provided by the Supplier or approved by the Supplier in the Specification for use by the Client in connection with the Website; or
d) the use of a non-current version or release of the Website.
Conditions: these terms and conditions as amended from time to time in accordance with clause 22.
Content: the content provided to the Supplier by the Client from time to time for incorporation into the Website.
Contract: the Contract between the Supplier and the Client which for the supply of Support Services which is subject to these Conditions.
Effective Date: the date from which the Support Services will be provided to the Client.
EU GDPR: the General Data Protection Regulation ((EU) 2016/679).
Excluded Services: services that the Supplier will not be supplying to the Client as more particularly described in clause 4.
Fault: any Operational Fault.
Good Industry Practice: the exercise of that degree of skill, care, prudence, efficiency, foresight and timeliness as would be expected from a company within the relevant industry or business sector.
Help Desk Support: any support provided by help desk technicians sufficiently qualified and experienced to identify and resolve most support issues relating to the Website.
Higher-level Support: any higher-level support provided by an individual.
Initial Term: the period of three months from the Effective Date.
Operational Fault: failure of the Website to operate in all material respects in accordance with the Specification and Documents, including any operational failure or error referred to in the Service Level Table.
Out-of-scope Services: any of the following services:
a) any services provided by the Supplier in connection with any apparent problem regarding the Website reasonably determined by the Supplier not to have been caused by a Fault, but rather by a Client Cause or a cause outside the Supplier’s control (including any investigational work resulting in such a determination); or
b) any Higher-level Support provided in the circumstances specified in clause 2.3.
c) Support Services provided at the request of the Client in excess of the agreed Support Hours or outside of the Support Hours.
Personal Data: any personal data which the Supplier processes in connection with this agreement
Service Levels: the service level responses and response times referred to in the Service Level Table.
Service Level Table: the table set out in clause 7.1.
Solution: either of the following outcomes:
a) correction of an Operational Fault or;
b) a workaround in relation to an Operational Fault (including a reversal of any changes to the Website if deemed appropriate by the Supplier) that is reasonably acceptable to the Client.
Support Fees: the fees or basis for charging fee agreed by the parties in writing.
Support Hours: the maximum number of hours provided by the Supplier for Support Services in each calendar month as agreed with the Client in writing.
Support Period: the period more particularly described in clause 13.1 (Term and Termination).
Support Request: request made by the Client for support in relation to the Website, including correction of an Operational Fault.
Support Services: maintenance of the Website, including the updating of the Website’s Content, Help Desk Support and Higher-level Support, but excluding any Out-of-scope Services and the Excluded Services.
Support Times: 9.00 am until 2.00 pm Monday to Friday (excluding bank holidays).
UK GDPR: has the meaning given to it in the Data Protection Act 2018.
Website: the website to be supported by the Supplier pursuant to this Contract.
1.2 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
1.3 Any words following the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms
1.4 Writing or written includes email but not fax.
2. Support Services
2.1 During the Support Period and up to the maximum number of Support Hours, the Supplier shall perform the Support Services during the Support Times in accordance with the Service Levels.
2.2 As part of the Support Services, the Supplier shall:
(a) provide Help Desk Support by means of the following telephone number [0161 533 0161] and e-mail address [[email protected]];
(b) use Commercially Reasonable Efforts to correct all Operational Faults notified under clause 6.3; and
(c) provide technical support for the Website in accordance with the Service Levels.
2.3 Any Higher-level Support requested by the Client to be provided by an individual whose qualification or experience is greater than that reasonably necessary to resolve the relevant Support Request shall be deemed an Out-of-scope Service, provided that an appropriately qualified or experienced individual was available at the time when the Higher-level Support was sought.
2.4 The Supplier may reasonably determine that any services are Out-of-scope Services.
2.5 The Client acknowledges that the Supplier is not obliged to provide Out-of-scope Services.
2.6 The Client acknowledges that Support Hours will not be carried over to subsequent months if they are not utilised in any calendar month.
3. Website Content
3.1 The Supplier shall update the Website with Content, but no more than once in any month during the Support Period. The Client shall ensure that the Content does not infringe any applicable laws, regulations or third party rights (such as but not limited to material which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred or acts of terrorism, menacing, blasphemous or in breach of any third party Intellectual Property Rights) (Inappropriate Content).
3.2 The Client acknowledges that the Supplier has no control over any content placed on the Site by visitors and does not purport to monitor the content of the Website. The Supplier may remove Content from the Website where it reasonably suspects such content is Inappropriate Content.
3.3 The Client shall indemnify the Supplier against all damages, losses and expenses arising as a result of any action or claim that the Content or any other material posted to, or linked to, the Website constitutes Inappropriate Content.
4. Excluded Services
The Supplier will not be providing the Client with the following Services (without limitation):
(a) Ongoing monitoring of website content;
(b) Penetration testing;
(c) Cybersecurity;
(d) Data protection / UK GDPR;
(e) Hosting;
(f) Back-ups; or
(g) Anti-virus protection.
5. Fees
5.1 The provision of Support Services on a remote, off-site basis (such as over the telephone or by e-mail) within the Support Period shall be included in the Support Fees.
5.2 The provision of Support Services outside the Support Period or the provision of Out-of-scope Services shall be charged for at the Supplier’s applicable time/cost rates.
6. Submitting Support Requests
6.1 The Client may request Support Services during the Support Times by way of a Support Request.
6.2 Each Support Request shall include a description of the Operational Fault and, where relevant, the start time of the incident.
6.3 The Client shall provide the Supplier with:
(a) prompt notice of any Faults which it becomes aware of; and
(b) such output and other data, documents, information, assistance and (subject to compliance with all Client’s security and encryption requirements notified to the Supplier in writing) remote access to the Website, as are reasonably necessary to assist the Supplier to reproduce operating conditions similar to those present when the Client detected the relevant Operational Fault and to respond to the relevant Support Request.
6.4 All Support Services shall be provided on an off-site basis (such as over the telephone or by e-mail) from the Supplier’s office.
7. Service Levels
7.1 The Supplier shall:
(a) prioritise all Support Requests based on its reasonable assessment of the severity level of the Fault reported; and
(b) use its reasonable endeavours to respond to Support Requests, in accordance with the responses and response times specified in the table set out below:
| Severity level of Fault | Definition | Service Level response and response time for Operational Faults |
| 1 | Business critical a) materially impacts the b) prevents necessary c) disables major | Stage 1 Response: Acknowledgment of receipt of a Support Request Stage 2 Response: The Supplier shall: a) restore the Website from the Client’s most b) exercise Commercially Reasonable Efforts until NOTE That the Supplier does not maintain any Stage 3 Response: The Supplier shall work on the problem If the Supplier delivers a Solution by way of a |
| 2 | System Defect with a) a business critical b) an error or failure in | Stage 1 Response: Acknowledgment of receipt of a Support Request Stage 2 Response: The Supplier shall, 3 Business a) an emergency software fix or workaround, or; b) temporary release or update release, which allows the Client to continue to use all Stage 3 Response: The Supplier shall provide a permanent Fault |
| 3 | Minor Error: An isolated or minor a) does not significantly b) may disable only c) does not materially | Stage 1 Response: Acknowledgment of receipt of the Support Request Stage 2 Response: The Supplier shall provide a permanent Fault |
7.2 Time for responding to a Support Request shall not be of the essence. Accordingly, no discount, refund or credit will be given to the Client in the event the Supplier fails to provide a solution within the relevant Service Level response time. The Client’s sole remedy in the event of the Supplier’s failure to respond to a Support Request within the relevant Service Level shall be contained in clause 8.
8. Sole remedy
If a Solution is not provided within the relevant Service Level response time, the Client may escalate the Support Request to the Supplier’s relationship manager.
9. Communications
The parties may communicate in respect of any matter referred to in this by e-mail (unless specified otherwise).
10. Data Protection
10.1 By entering into this agreement, the Client consents to (and shall procure all required consents, from its personnel, representatives and agents, in respect of) all actions taken by the Supplier in connection with the processing of Personal Data.
10.2 Without prejudice to the generality of clause 10.1, the Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of Personal Data to the Supplier during the Support Period and for purposes of this Contract.
10.3 The Client acknowledges that when providing the Support Services, the Supplier may have to appoint sub-processors to host the Website on a temporary basis for the purposes of carrying out investigations into Operational Faults. The Client hereby gives it prior general authorisation for the Supplier to:
(a) appoint sub-processors to process Personal Data for the purposes of the Support Services;
(b) Transfer Personal Data outside of the UK as required, provided that the Supplier shall ensure that all such transfers are effected in accordance with Applicable Data Protection Laws. For these purposes, the Client shall promptly comply with any reasonable request of the Supplier, including any request to enter into standard data protection clauses adopted by the EU Commission from time to time (where the EU GDPR applies to the transfer) or adopted by the Commissioner from time to time (where the UK GDPR applies to the transfer).
11. Limitation of Liability
11.1 Nothing in this Contract shall operate to exclude or limit either party’s liability for:
(a) death or personal injury caused by its negligence;
(b) fraud or fraudulent misrepresentation; or
(c) any other liability that cannot be excluded or limited under applicable law.
11.2 Subject to clause 11.1, the Supplier shall not be liable to the Client for any loss of profit or indirect, special or consequential losses or damages.
11.3 Subject to clause 11.1 and clause 11.2, the Supplier’s aggregate liability to the Client in respect of claims arising out of or in connection with this Contract whether in contract, tort (including negligence), breach of statutory duty or otherwise, shall in no circumstances exceed 100% of the Charges paid or payable by Client in the three months preceding the claim.
11.4 Unless the Client notifies the Supplier that it intends to make a claim in respect of an event within the notice period, the Supplier shall have no liability for that event. The notice period for an event shall start on the day on which the Client became, or ought reasonably to have become, aware of the event having occurred and shall expire three months from that date. The notice must be in writing and must clearly identify the event and the grounds for the claim in reasonable detail.
12. Intellectual Property
12.1 Where the Client owns the Intellectual Property Rights in the Website and its Content, it will grant the Supplier a licence to use such Intellectual Property Rights to the extent required by the Supplier to perform the Supply Services.
12.2 The Client shall indemnify the Supplier against all damages, losses and expenses arising as a result of any action or claim that the Website or Content infringe any Intellectual Property Rights of a third party.
12.3 Where the Website or the Content contains the Intellectual Property Rights of third parties, the Client shall, and shall use all reasonable endeavours to procure that any necessary third party shall, promptly execute and deliver such documents and perform such acts as may reasonably be required for the purpose of giving full effect to this clause 12.
13. Term and termination
13.1 This Contract shall commence on the Effective Date and shall continue, unless terminated earlier in accordance with this clause 13, for the Initial Term and thereafter until either party gives to the other party not less than one month’s notice in writing to terminate this Contract.
13.2 Without affecting any other right or remedy available to it, either party may terminate this Contract with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of any term of this Contract and (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
(b) if the other party suspends, or threatens to suspend, payment of its debts, or is unable to pay its debts as they fall due or admits inability to pay its debts, or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 as if the words “it is proved to the satisfaction of the court” did not appear in section 123(1)(e) or 123(2) of the IA 1986), or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or (being a partnership) has any partner to whom any of the foregoing apply;
(c) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with any of its creditors other (being a company) than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(d) the other party applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986;
(e) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the other party (being a company, limited liability partnership or partnership) other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(f) an application is made to court, or an order is made, for the appointment of an administrator, or a notice of intention to appoint an administrator is given or an administrator is appointed, over the other party (being a company, partnership or limited liability partnership);
(g) the holder of a qualifying floating charge over the assets of that other party (being a company, or limited liability partnership) has become entitled to appoint or has appointed an administrative receiver;
(h) a person becomes entitled to appoint a receiver over all or any of the assets of the other party or a receiver is appointed over all or any of the assets of the other party;
(i) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within 14 days; or
(j) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
13.3 The Supplier may terminate this Contract in whole or in part for convenience at any time by at least 7 days’ prior written notice to Client.
13.4 On expiry or termination of this Contract the Client shall pay all Charges outstanding.
13.5 Termination of this Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
14. Confidentiality
14.1 Each party undertakes that it shall not at any time during this Contract, and for a period of two years after termination or expiry of this Contract, disclose to any person any Confidential Information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as permitted by clause 14.2.
14.2 Each party may disclose the other party’s Confidential Information:
(a) to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such Confidential Information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with this Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party’s Confidential Information comply with this clause 14; and
(b) as may be required by law, court order or any governmental or regulatory authority.
14.3 No party shall use any other party’s Confidential Information for any purpose other than to exercise its rights and perform its obligations under or in connection with this Contract.
15. Force majeure
The Supplier shall not be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed.
16. Notices
16.1 Any notice given to a party under or in connection with this Contract shall be in writing and shall be:
(a) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office; or
(b) sent by email to the address specified in the Statement of Work.
16.2 Any notice or communication shall be deemed to have been received:
(a) if delivered by hand, at the time the notice is left at the proper address;
(b) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting;
(c) if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 16.2(c), business hours means 9.00 am to 5.00 pm Monday to Friday on a day that is not a public holiday in the place of receipt.
16.3 This clause 16 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
16.4 A notice given under this Contract is not valid if sent by fax.
17. Assignment and subcontracting
17.1 The Client shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under this Contract.
17.2 The Supplier may at any time assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under this Contract.
18. No partnership or agency
18.1 Nothing in this Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute that any party is the agent of another party, nor authorise any party to make or enter into any commitments for or on behalf of any other party.
18.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
19. Entire agreement
19.1 This Contract and any documents referred to within it 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.
19.2 Each party acknowledges that in entering into this Contract it does not rely on, and 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 Contract.
19.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Contract.
20. Independent Contractors
No one other than a party to this Contract, their successors and permitted assignees, shall have any right to enforce any of its terms.
21. Waiver
No failure or delay by a party to exercise any right or remedy provided under this Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
22. Variation
No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
23. Severance
23.1 If any provision or part-provision of this Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Contract.
23.2 If any provision or part-provision of this Contract is deemed deleted under clause 23.1, the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
24. Further assurance
At any time after the date of this Contract each of the parties shall, at the request and cost of the requesting party, execute or procure the execution of such documents and do or procure the doing of such acts and things as the party so requiring may reasonably require for the purpose of giving to the party so requiring the full benefit of all the terms and conditions of this Contract.
25. Invalidity
If any provision of this Contract shall be held to be illegal, void, invalid or unenforceable under the applicable laws of any jurisdiction, the legality, validity and enforceability of the remainder of this Contract in that jurisdiction shall not be affected, and the legality, validity and enforceability of the whole of this Contract in any other jurisdiction shall not be affected.
26. Costs
Subject to any express provision in this Contract to the contrary, each party shall pay its own costs of and incidental to the negotiation, preparation, execution and carrying into effect of this Contract.
27. Governing law
This Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with them or their subject matter or formation shall be governed by and construed in accordance with the laws of England.
28. Jurisdiction
Each party irrevocably agrees that the courts of England shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Contract or its subject matter or formation.
