IT Support Services Terms and Conditions
BETWEEN
(1) CROFT COMMUNICATIONS LIMITED (registered number 09585068) a company incorporated in England and Wales whose registered office is at Ground Floor, Unit E1, The Chase, John Tate Road, Hertford, England, SG13 7NN (“Croft”); and
(2) CUSTOMER (as identified on the quotation)
Each a “party” and collectively the “parties”.
WHEREAS
The Customer wishes Croft to provide specific IT support services in exchange for payment of the Charges, subject to and in accordance with the terms of this agreement (the “Agreement”). Such support excludes Telephony related activities which if to be provided will be covered under a separate agreement.
IT IS AGREED AS FOLLOWS
1 INTERPRETATION
1.1 The following expressions shall have the following meanings:
Accepted Date: The date on which the customer digitally accepted the quotation;
Additional Services: Any services performed by Croft for the Customer which are not Services, agreed pursuant to Schedule 5;
Business Day: Monday to Friday, 08:30am to 17:30pm excluding English bank or public holidays;
Charges: The charges payable by the Customer to Croft in consideration of the Services (and/or the Additional Services) and as set out at Schedule 3;
Contract Year: Any 12-month period ending on any anniversary of the Effective Date;
Controller, Processor, Data Subject, Personal Data, Personal Data Breach, processing and appropriate technical and organisational measures: each have their meaning set out in the Data Protection Laws;
Croft Personnel: any direct or indirect subsidiary, agent or contractor of Croft and any employee or agent of any of the same;
Croft Provided Items: all software, hardware, equipment including cabling and other materials, data, documents and information supplied or procured by Croft in connection with the Services and / or the Additional Services, other than Customer Provided Items;
Customer Personnel: any direct or indirect subsidiary, agent or contractor of the Customer and any employee or agent of any of the same;
Customer Provided Items: all software, hardware, equipment including cabling and other materials, data, documents and information provided by the Customer in connection with the performance of the Services and / or the Additional Services;
Customer Responsibilities: the obligations referred to in clause 6, together with any matters described as the ‘Customer Responsibilities’ in Schedule 2;
Data Protection Laws: the data protection and privacy legislation in force from time to time which are applicable to Croft, Customer or the provision of the Services, including: (a) the UK GDPR; (b) the DPA; and (c) any legislation and/or regulation which transposes, amends, replaces, re-enacts or consolidates any of them.
DPA: the Data Protection Act 2018;
Effective Date: The date on which services will begin, and or on which billing will commence. This date may also be specified in the signed quotation.
Employment Costs: means all pay, benefits, PAYE payments, national insurance contributions, pension contributions and other amounts payable to or in respect of the employment or engagement of any person;
Employment Liabilities: means all liabilities including, but not limited to, claims for redundancy payments, unlawful deductions from wages, unfair, wrongful or constructive dismissal compensation, compensation for age, sex, race or disability discrimination or discrimination on the grounds of religion, belief, age or sexual orientation or claims for equal pay, compensation for less favourable treatment of part- time workers, and any other claims whether in tort (including negligence), contract or statute or otherwise, and any demands, actions, proceedings and any award, compensation, damages, tribunal awards, fine, loss, order, penalty, disbursement, payment made by way of settlement and costs and expenses reasonably incurred in connection with a claim or investigation, and any expenses and legal costs on an indemnity basis;
End of Life Statement (EOL): is a term used by a Supplier to inform that it will end or limit its future support and supply of software/firmware updates/patching, on a product and/or version and in the case of hardware that its manufacture is to be terminated;
Force Majeure Event: any event beyond the reasonable control of a party including without limitation, an act of God or industrial action, fires, insurrection or riots, embargoes, container shortages, wrecks or delays in transportation, disease or epidemic inability to obtain requirements from third parties (for example as a result of withdrawal of third party software license(s)) or other default of Suppliers or subcontractors, the unavailability of the internet or regulations of any civil or military authority, compliance with any law or governmental order state or international sanctions arising from war or other hostilities;
Hardware Supplier: a person who supplies computer hardware and ancillary equipment;
Initial Term: means 12 months from the Effective Date unless otherwise stated in the quotation.
Intellectual Property Rights: all intellectual and industrial property rights, including, without limitation, patents, rights in registered and unregistered trade marks (including domain names), rights in registered and unregistered designs, utility models, trade or business names, confidential information, know-how, database rights, topography rights, passing-off rights, and copyright (including moral rights), or other industrial, intellectual or commercial rights (including rights in any invention, discovery or process), and applications for registration of any of the foregoing, and the right to apply therefore, in each case in any part of the world;
Premises: Customer’s premises;
Response Times: the times stated in Croft’s Service Level Agreement (SLA) for response by Croft to a request for Services;
Service Levels: the Response Times for delivery of the Services as set out in Croft’s Service Level Agreement.
Services: the services expressly indicated to be included by Croft as set out in the service description, in respect of the Supported System, subject always to clause 4, clause 6;
Software Supplier: a person or company who develops or owns computer software and firmware and who grants licences to or permits others to use such computer software and firmware;
Supplier: means a Hardware Supplier and/or a Software Supplier;
Supported Equipment: the Customer’s equipment and hardware provided by the customer which is used directly in the supply of the services including any such items specified in the quotation and service description.
Supported Software: the Customer’s software and firmware; Software specifically defined in the service description and quotation.
Supported System: The Supported Equipment and the Supported Software;
Telephony: Pertaining to the working, use, operation or maintenance of telephone equipment;
Third Party Materials: all software, hardware, equipment including cabling and other materials, data, documents and information owned by a third party; and
UK GDPR: the retained EU law version of the General Data Protection Regulation (EU) 2016/679).
1.2 References to regulations, statutes or other statutory provisions shall be construed to include references to those regulations, statutes or provisions as amended, re-enacted or modified from time to time and shall include any subordinate legislation under the relevant statute or statutory provision.
1.3 The headings in these terms are for ease of reference only and shall not in any way affect their construction or interpretation.
1.4 Words denoting the singular include the plural and vice versa; words denoting any one gender include all genders and vice versa, and reference to a person shall include an individual, partnership, body corporate and unincorporated association.
1.5 References to any party shall include its personal representatives’ lawful successor in title and permitted assignees;
1.6 The words and phrases “other”, "for example", “including” and “in particular” shall not limit the generality of any preceding words or be construed as being limited to the same class as the preceding words where a wider construction is possible.
1.7 Any reference to this Agreement includes the Schedules to it.
2 AGREEMENT
2.1 This Agreement shall apply to the supply of the Services (and / or Additional Services) by Croft to the Customer. The Agreement shall comprise these terms and conditions, and any additional terms and conditions that are explicitly agreed in writing to apply. If there is any conflict between them, the terms in this Agreement shall prevail in the following order:
2.1.1 these terms and conditions; and
2.1.2 the Schedules.
3 TERM
3.1 This Agreement shall commence on the Effective Date and subject to earlier termination in accordance with its terms, shall continue in force for the duration of the Initial Term, and then be automatically renewed for a further 12 months on a 12 month rolling basis, subject to termination by either party by giving to the other not less than 90 days' written notice of termination prior to the relevant renewal date.
4 PERFORMANCE
4.1 The Services shall be performed by Croft in accordance with the process described in Schedule 1 and with the degree of care and skill expected of an experienced provider of such Services.
4.2 Croft shall use reasonable endeavours to meet the Service Levels. Croft shall not however be liable to the Customer for delay in, or failure to, meet the Service Levels where the delay or failure to meet the Service Levels is attributable to: -
4.2.1 an act or omission of the Customer or any of the Customer Personnel; or
4.2.2 delay or failure on the part of any relevant Supplier to supply information or materials of any sort which Croft (acting reasonably) considers are required for it to be able to perform the Services and / or the Additional Services or any thereof;
4.2.3 a Force Majeure Event; or
4.2.4 an event that is agreed with the Customer to be beyond the control of Croft, and in any and each such case, time for performance by Croft will be extended accordingly.
4.3 Croft does not warrant the continuous, uninterrupted, error-free operation of the Services or the Additional Services.
4.4 Software upgrades are not Services provided by Croft unless:
4.4.1 such upgrades are expressly included in the service description.
4.4.2 any software upgrade is carried out by Croft for fault resolution relating to matters expressly included in the service description.
4.5 Notwithstanding the Services and / or the Additional Services to be provided, if at any time a Supplier issues an EOL or otherwise ceases to support any operating system (for example Windows 7) product or version then as from the time the Supplier ceases its support Croft will no longer supply Services and / or Additional Services in connection with that operating system product or version.
4.6 Where any matter or service is not expressly stated to be an obligation of Croft then Croft shall have no responsibility for it.
5 MATERIALS
5.1 Unless expressly included within the Services, the parties shall agree on the amounts to be paid by the Customer to Croft in respect of any Croft Provided Items used in connection with the Services and / or the Additional Services. Until such amounts are agreed upon, Croft shall have no obligations to provide any such Croft-Provided Items, and the Customer-Provided Items shall instead be provided free of charge by the Customer to Croft in a timely fashion.
5.2 All Croft Provided Items used in connection with its performance of the Services and / or the Additional Services shall conform to their manufacturer’s specification.
5.3 Where in performance of the Services and / or the Additional Services Croft removes hardware from the Supported System, which is not readily reparable, Croft may replace that equipment with equipment of similar specification and age.
5.4 Subject to the remainder of this clause 5, ownership of all Croft Provided Items installed in the Supported System by Croft or Croft Personnel on a permanent basis shall vest in the Customer in accordance with clause 5.6. Ownership of all Croft Provided Items installed by Croft Personnel on a temporary basis shall remain with Croft. The Customer shall, when requested and on Croft’s standard acknowledgement, confirm in writing that Croft Provided Items have been installed in the Supported System.
5.5 Ownership of all Customer Provided Items permanently removed from the Supported System in the course of performing the Services and / or the Additional Services shall, subject to written approval by the Customer, vest in Croft (with ownership passing on the provision of such approval) and Croft shall be responsible for disposal where such Customer Provided Items are redundant.
5.6 Ownership of Croft Provided Items where such materials are installed in the Supported System on a permanent basis, shall pass to the Customer only on receipt by Croft of payment in full for such items (including VAT and other taxes and duties payable to Croft for those Croft Provided Items). Risk in such items shall pass to the Customer on installation.
6 CUSTOMER RESPONSIBILITIES
6.1 The Customer shall be responsible for performing or providing (as applicable) the Customer Responsibilities. Performance of the Services and / or the Additional Services by Croft shall be subject to the proper performance of the Customer Responsibilities and adherence by the Customer to the requirements of Schedule 2. Croft shall have no liability for any loss or damage suffered or incurred by the Customer or any Customer Personnel or to the extent that such loss or damage flows from: (i) the Customer’s breach of this clause (or any other clause in this Agreement); or (ii) any information supplied by the Customer or any Customer Personnel which is misleading, inaccurate or incomplete.
6.2 In addition to any specific Customer Responsibilities listed in Schedule 2 or elsewhere, the Customer agrees to:
6.2.1 provide, in a timely fashion, information to Croft as necessary for the performance of Croft ’s obligations under this Agreement and shall not withhold, or prevent Croft from 10 receiving or discovering, any information which it reasonably requires to perform the Services and / or the Additional Service;
6.2.2 pay the Charges and any other sums due in accordance with the terms of this Agreement;
6.2.3 comply with all applicable laws and regulations;
6.2.4 allow performance of the Services and / or the Additional Service, including making available to Croft, without charge and for the duration of the Agreement, rights of access to the Customer Provided Items, the Premises and all other relevant areas;
6.2.5 ensure that Customer Personnel co-operate with Croft and Croft Personnel and facilitate the performance of Services and / or the Additional Service;
6.2.6 inform all employees and users of the Customer Provided Items and Croft Provided Items of the Customer's fair usage policy to include such statements necessary to deter misuse of each IT network and related facilities;
6.2.7 ensure all hardware and software in the Supported System is updated regularly with all security updates and patches recommended by the relevant Supplier save to the extent that Croft agrees to perform any of these functions as part of the service description; and
6.2.8 adhere to the procedure set out in Schedule 1.
7 PAYMENT
7.1 Croft shall invoice the Customer, and the Customer agrees to pay the Charges using the Payment Process set out at Schedule 3.
7.2 All Charges invoiced by Croft to the Customer shall be paid by monthly direct debit, where offered.
7.3 All Charges invoiced by Croft to the Customer shall be paid by the Customer within 30 days of the date of invoice.
7.4 All Charges are exclusive of value added tax, which if applicable, will be paid by the Customer in addition, at the rate and in the manner for the time being provided by law on the issue by Croft of a valid tax invoice.
7.5 If the Customer wishes to dispute the whole or any part of any invoice, it must notify Croft prior to the due date for payment of the relevant invoice and provide full details of the disputed amount and the nature of the dispute. Any undisputed part of an invoice must be paid in full and in accordance with clause 7.3.
7.6 If the Customer cancels the direct debit agreement or fails to make any payment when due, without affecting any other rights which it may have, Croft shall be entitled to exercise all or any of the following rights:
7.6.1 be paid compensation and charge interest on the overdue amount at the statutory rate and otherwise in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 (as amended), or at Croft’s election or where such Act is not applicable, charge interest on the overdue amount, at a rate of 2% above the sterling 11 base rate from time to time of Lloyds Bank plc which shall accrue from day to day (both before and after any judgement) from the due date until payment in full is received by Croft and such interest shall be compounded quarterly;
7.6.2 terminate the Agreement under clause 8.
8 TERMINATION
8.1 Either party may, without prejudice to its other rights and remedies, terminate this Agreement with immediate effect by giving notice in writing to the other party if that other party is in material breach of this Agreement (being a single event or series of events that are together a material breach) and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing to do so.
8.2 Either party may terminate this Agreement immediately by notice in writing if the other party:
8.2.1 stops carrying on all or a significant part of its business, or indicates in any way that it intends to do so;
8.2.2 is unable to pay its debts either within the meaning of section 123 of the Insolvency Act 1986 or if the non-defaulting party reasonably believes that to be the case;
8.2.3 becomes the subject of a company voluntary arrangement under the Insolvency Act 1986;
8.2.4 has a receiver, manager, administrator or administrative receiver appointed over all or any part of its undertaking, assets or income;
8.2.5 has a resolution passed for its winding up, (except for purposes of re-construction or amalgamation);
8.2.6 has a petition presented to any court for its winding up or an application is made for an administration order, or any winding-up or administration order is made against it;
8.2.7 is subject to any procedure for the taking control of its goods that is not withdrawn or discharged within seven days of that procedure being commenced;
8.2.8 has a freezing order made against it, or
8.2.9 anything analogous to any of the above 8.2.1 – 8.2.8 occurs in any other jurisdiction relevant to the other party.
8.3 Croft may terminate this Agreement immediately by written notice, if the Customer:
8.3.1 fails to pay any Charges or other sums (including interest and or compensation under clause 7.6) due to Croft in full so that they are received by Croft on or before the due date for payment; or
8.3.2 cancels any direct debit mandate in favour of Croft and fails to reinstate it within 15 Business Days after receiving notice in writing from Croft requiring it to do so.
8.4 Where Croft has the right to terminate this Agreement, it may without prejudice to any of its other rights, or the obligations of the Customer, and without thereby incurring any liability to the Customer, suspend its performance of this Agreement until the breach event or omission concerned has been remedied by the Customer.
8.5 The following clauses of this Agreement shall survive termination, howsoever caused:
8.5.1 clause 9 (Consequence of Termination);
8.5.2 clause 10 (Liability);
8.5.3 clause 11 (Confidentiality);
8.5.4 clause 13 (Data Protection);
8.5.5 clause 18 (Notices);
8.5.6 clause 19.9 (Third Party Rights);
8.5.7 clauses 22 (Governing Law and Jurisdiction); and
8.5.8 any other provision of this Agreement which expressly or by implication is intended to survive termination.
9 CONSEQUENCES OF TERMINATION
9.1 Any termination of this Agreement, however caused, shall not affect:
9.1.1 any right or liabilities which have accrued prior to the time of termination; or
9.1.2 the continuance in force of any provision hereof which expressly or by implication is intended to come into or continue in force after termination.
9.2 On termination of this Agreement for any reason and on its expiry:
9.2.1 Croft will cease to provide the Services and / or any Additional Service;
9.2.2 the Customer must stop using and / or accessing the Services and / or the Additional Services, and uninstall, return, or on the instruction of Croft, destroy all Croft documentation and Croft Provided Items in its possession or under its control;
9.2.3 subject to 9.2.4 below, Croft shall return to the Customer any Customer Provided Items in its possession no later than 2 weeks after the date of the termination or expiry of this Agreement. The Customer shall afford the same rights to Croft to re-possess all Croft Provided Items;
9.2.4 the Customer shall pay all reasonable expenses incurred by Croft in returning or disposing of Customer Provided Items; and
9.2.5 the Customer will remain liable for any Charges (and other payments under clause 7.5) that have fallen due and remain unpaid.
9.3 In respect of any period in which notice to terminate has been given under clause 3.1, Croft shall, at the request of the Customer and cost of the Customer, provide such reasonable assistance in relation to the transfer of the Services and / or the Additional Services to a new provider as is requested. The cost shall be agreed between the parties and Croft shall have no obligation to provide any such assistance unless and until the cost is agreed and paid to Croft.
10 LIABILITY
10.1 Without prejudice to the other limitations on Croft’s liability in this Agreement but subject to clause 10.3 the total aggregate liability of Croft for any and all costs, expenses, loss and or damage whatsoever suffered or incurred by the Customer arising out of or in connection with this Agreement, and / or the Services and / or any Additional Services (including whether under contract or in tort including negligence, or for breach of statutory duty or otherwise howsoever and whether arising out of any act or omission of Croft or any Croft Personnel) shall in no circumstances exceed a sum equal to one hundred percent (100%) of the Charges payable by the Customer in the Contract Year in which the liability arises.
10.2 To the maximum extent permitted under applicable law and notwithstanding anything to the contrary in this Agreement other than clause 10.3, Croft shall, whether arising in contract, tort (including negligence), warranty, or for breach of statutory duty or out of any act or omission of Croft or any Croft Personnel or otherwise howsoever, in no event be liable to the Customer for:
10.2.1 special, indirect and/or consequential loss or damage;
10.2.2 loss of business or business opportunity (whether direct or indirect);
10.2.3 loss of profit (whether direct or indirect);
10.2.4 loss of turnover (whether direct or indirect);
10.2.5 loss of data (whether direct or indirect); or
10.2.6 loss of contracts or custom (whether direct or indirect).
10.3 No such exclusion or limitation shall apply to the extent prohibited or limited by law and in particular nothing in this Agreement shall affect liability:
10.3.1 for death or personal injury caused by negligence to the extent prohibited by the Unfair Contracts Agreement Terms Act 1977; or
10.3.2 for fraudulent misrepresentation or other fraud.
10.4 All warranties, conditions, terms and liabilities expressed or implied, statutory or otherwise, on the part of Croft , in respect of compliance with descriptions, the quality or the fitness for purpose of the Croft Provided Items and / or the Services and / or the Additional Services which are not expressly set out in this Agreement are excluded except to the extent such exclusion is prohibited or limited by law.
10.5 Croft shall not be liable to the Customer for any claim unless made with reasonable details in writing to Croft without unreasonable delay and in any event no later than 1 year after the date the circumstances giving rise to the claim first came (or ought reasonably to have come) to the Customer’s notice.
10.6 Save to the extent caused directly by Croft or Croft Personnel and subject always to clauses 10.1 and 10.2 Croft is not responsible for infection of the Supported System or the remedy of any issues in the Supported System caused by, or resulting from, virus impregnation, any security vulnerabilities, breaches caused by virus or malware impregnation.
10.7 The Customer shall take all reasonable steps to mitigate all such costs, expenses, loss and or damage referred to in clause 10.1.
11 CONFIDENTIALITY
11.1 Without prejudice to each party’s other rights and remedies, a party (the “receiving party”) shall treat as confidential any information which is, by its nature confidential, that is, or has been, disclosed to it by the other or any such information that has come to the receiving party’s attention or otherwise obtained by the receiving party in pursuance of the matters contemplated under this Agreement and shall not divulge, except as permitted by clause 11.2, any such information to a third party and shall not make any use of such information (other than in performance of this Agreement) without the other’s written consent, save that Croft may disclose such confidential information of the Customer to Croft Personnel as may be reasonable so that the Services and / or Additional Services may be effectively provided.
11.2 This clause shall not prevent a party from disclosing information to its professional advisors or from making disclosures required by law, court order or any other legal or regulatory authority, including the rules of any stock exchange.
11.3 No public announcement or statement regarding the signature, performance or termination of this Agreement shall be issued or made by the Customer unless such announcement or statement shall have been approved in writing by Croft.
12 INTELLECTUAL PROPERTY RIGHTS
12.1 Except as expressly provided in this Agreement:
12.1.1 Croft reserves unto itself (and where applicable any third party licensors of such rights to Croft “Licensors”) all Intellectual Property Rights and all other rights, title and interest in the Services, Additional Services and / or the Croft Provided Items ("Proprietary Materials"); and
12.1.2 no Intellectual Property Rights of Croft are transferred to the Customer and no licences to use any Intellectual Property Rights of Croft are granted to the Customer save that Croft grants to the Customer a non-exclusive, non-transferable, non-sublicensable licence for the term of this Agreement solely for the purpose of receiving and using the Services and / or Additional Services.
12.2 The Customer warrants and represents that:
12.2.1 it will, on reasonable request, do all acts and things and execute all documents, deeds and instruments which are reasonably necessary for the protection and enforcement of Croft's (and its Licensors’) Intellectual Property Rights and rights, title and interest in and to the Services and / or the Additional Services and the Croft Provided Items, and shall not do or permit to be done anything that will or might bring such rights, title and interest into question; and
12.2.2 it will not remove any copyright, database right, trade mark or proprietary marking on any part of the Service and / or the Additional Services or the Croft Provided Items.
12.3 The Customer shall indemnify and keep indemnified Croft from and against all claims, liabilities, damages, penalties, costs and expenses (including legal expenses and sums paid in settlement of any claim whether actual or alleged) suffered or incurred by Croft arising out of or in connection with any breach of the Customer’s obligations in this clause 12.
12.4 The Customer shall own all Intellectual Property Rights in and to all of the Customer Provided Items or be validly licensed to use the same and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Provided Items. In the event of any loss or damage to such data and software forming part of the Customer Provided Items, the Customer’s sole and exclusive remedy and the only liability of Croft shall be for Croft to use reasonable commercial endeavours to restore the lost or damaged data and software from the latest back-up of such Customer Provided Items.
12.5 Croft is not responsible for reliability, integrity, accuracy and quality of system backups and data backups, unless specified otherwise in the quotation or service description.
12.6 Save to the extent set out in clause 12.4 Croft shall not be responsible for any loss, destruction, alteration or disclosure of Customer Provided Items caused by any third party. This shall not exclude the Customer from bringing action against Croft for negligent or malicious acts or omissions.
13 DATA PROTECTION
13.1 Each party shall, in performing its obligations under this Agreement comply with its obligations under Data Protection Laws.
13.2 If, in the course of the provision of the Services and / or the Additional Services, Croft processes Personal Data of the Customer:
13.2.1 it shall do so as a Processor, on behalf of the Customer, as Controller;
13.2.2 the Customer shall ensure that it has in place at all times all necessary notices and consents and authorisations for Croft and Croft Personnel to process Personal Data of the Customer in the manner envisaged in the Agreement; and
13.2.3 the provisions of Schedule 4 shall apply.
14 EMPLOYEES
14.1 The Customer and Croft agree that, unless otherwise stated in this Agreement, the entry into this Agreement, its performance or its extension shall not for the purposes of the Transfer of Undertakings (Protection of Employment) Regulations 2006 as amended from time to time (the “Regulations”) constitute a “relevant transfer” of any employees of the Customer (or of any contractor engaged by the Customer in providing goods and/or services similar to the Services and / or the Additional Services and any materials provided ancillary thereto (“Customer’s Contractor”).
14.2 If, however, an agreement of employment between the Customer (or any Customer’s Contractor or any other Customer Personnel) and any person has effect, pursuant to the Regulations, as if originally made between Croft and such person, or if a claim is made to such effect, Croft may within 2 months of becoming aware of such event, terminate such agreement and the Customer shall be responsible for, and shall indemnify and keep indemnified in full Croft, against all Employment Costs and against all Employment Liabilities 16 incurred by Croft in any way arising out of such relevant transfer as well as out of the termination of the employment of that person by Croft.
15 NON-SOLICITATION
15.1 The Customer undertakes to Croft that it shall not at any time during the term of this Agreement or for a period of 1 year thereafter directly or indirectly (whether alone or on behalf of or in association or conjunction with any other person) solicit or endeavour to entice away any person who at that time or (in respect of the period of 1 year following the termination of this Agreement) at the date of termination of this Agreement was an employee, subcontractor or agent of Croft engaged in providing the Services and / or the Additional Services whether or not such person would commit a breach of contract by reason of his leaving such employment unless:-
15.1.1 Croft expressly consents to the Customer employing or procuring alternative employment for such person; and
15.1.2 the Customer pays to Croft a fee equal to one quarter of the annual salary of such person at the time that person ceased to be an employee, subcontractor or agent of Croft engaged in providing the Services and / or the Additional Services such fee (together with the applicable value added tax) to be received by Croft forthwith upon delivery to the Customer of an invoice for the same.
16 FORCE MAJEURE EVENT
16.1 Neither Party shall be in breach of this Agreement or liable to the other party if it fails to perform or is delayed in the performance of any of its obligations under this Agreement as a result of any Force Majeure Event.
16.2 On a party becoming aware that it is subject to a Force Majeure Event which has or is likely to have a detrimental effect on its performance of its obligations under this Agreement it must promptly give written notices of the same to the other party and give such details of the event as it then has and its view of the likely duration.
16.3 If the performance by a party of any of its obligations under this Agreement is prevented or delayed by any Force Majeure Event for a continuous period in excess of 20 Business Days, the parties shall negotiate in good faith and use their reasonable endeavours to agree upon such amendments to this Agreement or alternative arrangements as may be fair and reasonable with a view to alleviating its effects, but if they do not agree upon such amendments or arrangements within a further period of 20 Business Days, either party shall be entitled to terminate this Agreement by giving written notice to the other party.
17 NO PARTNERSHIP OR AGENCY
17.1 Nothing in this Agreement is intended to or shall operate to create a partnership between the parties or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
18 NOTICES
Any notices under this Agreement, shall be in writing and signed by or on behalf of the party giving it. Any such notice may be served by delivering it by hand or by sending it by pre-paid recorded delivery post at or to the address recorded in this Agreement of the relevant party or any other address in England which it may from time to time notify in writing to the other party. Notices delivered by hand shall be deemed received no later than the time of delivery and notices sent by registered post shall be deemed received at 9.00am on the second working day following despatch, Saturdays, Sundays and public holidays in each case excepted. A notice will not be valid if given by text, fax, email message or similar means.
Notices to Croft:
Contact: [Rob Deacon] Address: Croft, E1, Foxhole Business Park, John Tate Rd, Hertford, SG13 7NN.
19 GENERAL
19.1 The Customer represents, warrants and undertakes that it has the power to enter into and comply with all of its obligations under this Agreement and that its entry into, performance of, or compliance with its obligations under this Agreement does not and will not violate any law, licence, regulation or contract to which it is subject or its Memorandum or Articles of Association.
19.2 Croft may perform any of its obligations or exercise any of its rights under this Agreement itself or through any Croft Personnel.
19.3 The Customer shall not assign, transfer, charge, hold on trust for another or deal in any other manner with any of its rights or obligations under this Agreement without the prior written consent of Croft .
19.4 Croft may at any time assign, transfer, charge or deal in any other manner with any of its rights under this Agreement and may sub-contract any or all of its obligations under this Agreement.
19.5 No variation of this Agreement shall be valid unless it is in writing and signed by or on behalf of each of the parties.
19.6 The failure by either party to enforce at any time or for any period any one or more of the terms or conditions of this Agreement shall not be a waiver of them or of the right at any time subsequently to enforce all the terms and conditions of this Agreement. Unless specifically provided otherwise, rights arising under this Agreement are cumulative and do not exclude rights provided by law.
19.7 If any provision of this Agreement is declared by any court or other competent authority to be void, voidable, illegal or otherwise unenforceable, the validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby.
19.8 To the extent determined from time to time by Croft , each of Croft ’s companies and the employees of Croft (each being a “third party”) shall pursuant to the Contracts (Rights of Third Parties) Act 1999, be entitled to benefit from every indemnity and exclusion and limitation of liability expressed in favour of Croft so that the liability of all third parties and Croft in total shall be no greater than the liability of Croft alone as set out in this Agreement. No third party’s consent shall be required to cancel or vary this Agreement and no third party shall be entitled to transfer any of their rights referred to in this clause.
19.9 Except as set out in clause 19.8, no provision of this Agreement shall be enforceable pursuant to the Contracts (Rights of Third Parties) Act 1999 by any person who is not a party to it.
20 ENTIRE AGREEMENT
20.1 This Agreement constitutes the entire agreement and understanding of the parties and supersedes any previous agreement or understanding between the parties with respect to the arrangements contemplated by or referred to in it.
20.2 The Customer accepts that it does not rely on, and shall have no remedy in respect of, any representation, whether negligent or not, of any person which is not expressly set out in this Agreement, and the only remedy available to it for breach of any representation that is expressly set out in this Agreement shall be for breach of contract. For the avoidance of doubt nothing in this Agreement shall affect the liability of either party for fraudulent or negligent misrepresentation.
21 SECURITY
21.2 The Customer may change any password for the Supported System at any time. The Customer is responsible for the security and proper use of all passwords and must take all necessary steps to ensure that all passwords are kept confidential and are used properly and not disclosed to unauthorised people. If a password change is to occur, then the Croft helpdesk must be informed securely of the change for the purposes of on-going support.
21.2 The Customer must inform Croft immediately if there is any reason to believe that any such passwords have become known to someone not authorised to use them, or if any passwords are being or likely to be used in an unauthorised way. Croft will not be liable if passwords are disclosed or used improperly by the Customer, Customer Personnel or third parties.
21.3 If Croft has reason to believe that there is likely to be a breach of security in relation to the support system or misuse of the server, Croft may change any or all of the customers passwords and notify the customer promptly and securely.
22 GOVERNING LAW AND JURISDICTION
21.1 This Agreement shall be construed in accordance with the laws of England. The parties shall submit to the exclusive jurisdiction of the Courts of England.
SCHEDULE 1 – OPERATION OF THE SERVICES
1
1.1 The Services are a system for Service Desk support including onsite and remote support for the Supported Software on the Supported Equipment, together with provision of loan equipment that is couriered to site and return of faulty Supported Equipment for inspection by Croft.
1.2 Calls for assistance must be made promptly by the Customer and will be logged with the Croft Service Desk via telephone, web portal or email. The support request will be allocated a unique call reference number and then prioritised. A technician will then make contact within the agreed response time as set out in Croft’s Service Level Agreement.
1.3 Upon making contact, Croft will determine if the fault is connected with the Supported System or Customer Provided Items. Where the fault lies with the Supported System, Croft will provide services to remedy such fault in accordance with the terms and conditions of this contract but ultimately cannot be responsible for any lack of performance or configuration issue with any materials outside the scope of this Agreement.
1.4 On resolution of a fault call, to the Customer’s reasonable satisfaction and agreement, and following regular and reasonable attempts to contact the Customer, the fault call will be deemed closed if Croft is unable to obtain a response within a period of 3 Business Days.
1.5 Unless otherwise specified within the signed quotation or service description, Croft are not responsible for the integrity, testing or monitoring backups.
1.6 Data restorations will only be performed from the last good backup.
1.7 The Services will be provided only in respect of the Supported System unless otherwise specifically defined in the quotation.
1.8 Croft personnel may from time-to-time supply to the Customer a copy of the employee’s timesheets on performance of the Services requested by the Customer for signature approval. Such timesheets shall record, the time the Croft employee has spent on-site, fault details and brief details about the work carried out by the Croft employee.
Faulty Hardware
1.9 Where Supported Equipment is deemed to be faulty and is covered by an active vendor or 3rd party warranty agreement, and the fault does not form part of the Excepted Services, a Croft technician or a technician from a subcontracted third-party supplier will attend site in order to attempt to rectify the problem.
1.10 Where Supported Equipment cover is in place, and the fault does not form part of the Excepted Services, the technician may install temporary equipment, re-instate software services and elect to repair the faulty unit either on-site or at the Croft workshop facility. If the Customer has elected not to include on-site hardware cover and/or supported equipment is no longer under an active warranty, all services are chargeable at the Additional Services rates.
1.11 Regular on-site support visits
Customers who have elected to incorporate regular and scheduled on-site visits from Croft engineers must utilise such services in a support capacity only. Discounted rates which are applied to regular attendance are geared towards the provision of general housekeeping, inventory and asset management, PC workstation support, occasional minor printer support tasks and rudimentary server and infrastructure support.
1.12 Frequencies and durations of such visits will be defined in the quotation.
1.13 Requests for amendment of on-site visits are to be made in writing to the Customer’s account manager at Croft. The above regular on-site visits may be changed at any point during the term of this Agreement, subject to 30 days’ written notice.
SCHEDULE 2 - CUSTOMER RESPONSIBILITIES
The Customer shall:
1 Take all reasonable steps to ensure faults are reported to Croft as soon as they manifest;
2 Grant Croft such access to the Premises and any other relevant Customer sites as Croft shall from time to time reasonably require in order to discharge its obligations hereunder;
3 Make available such facilities as Croft shall reasonably require in order to discharge its obligations hereunder including without limitation adequate work space storage and office furniture and equipment;
4 Provide to the technician unlimited access (including remote access) to the Customer’s equipment for the purposes of performing the Services and / or Additional Services;
5 Co-operate with Croft in performing the Services and / or Additional Services and provide any assistance or information as may reasonably be required by Croft;
6 Provide full details of any third party software licences and / or other contractual agreements, obligations which are relevant to the Services and/ or Additional Services being performed by Croft;
7 Take all reasonable precautions to protect the health and safety of Croft's employees agents and sub-contractors while on the Premises or other Customer site;
8 Make available the Supported System and supply all documentation and other information necessary for Croft to diagnose any fault in the Supported System;
9 Ensure that appropriate environmental conditions are maintained for the Supported System and shall take all reasonable steps to ensure that the Supported System is operated in a proper manner by the Customer's tenants.
10 Keep Croft indemnified against all costs, claims and liabilities incurred as a result of any damage to Croft (or its personnel’s) property and the death of or injury to any Croft personnel caused by the actions or omissions of the Customers staff;
11 Maintain and provide to Croft an authorised representative contact list including names, telephone numbers and email addresses for use by Croft's helpdesk for problem determination assistance and escalation and ensure such personnel are available as required;
12 Identify the authorised representatives to Croft;
13 Ensure that the authorised representatives gives following information to Croft when contacting the Croft helpdesk: 23
13.1 Name and contact telephone number; and
13.2 Description of the incident or required assistance;
14 Be responsible for the resolution or closure of all incidents related to products and services that are not within the Services and not Additional Services;
15 Not adapt or convert or authorise others to adapt or convert materials supplied by Croft (or any part thereof) into any other form;
16 Ensure that all legal requirements and internal codes and practices concerning health and safety applicable to its tenants shall be fully observed in relation to the personnel of Croft while at the Premises and in particular that regulations concerning display monitors are complied with;
17 Where it is agreed in writing that the Customer shall be responsible for the provision of any licenses which they previously hold in conjunction with the use of the Services and / or Additional Services, obtain, pay for and maintain in force all such licenses; and
18 Ensure that they have in place, all necessary industry standard safeguards to restrict third party access to the Services.
SCHEDULE 3 - THE CHARGES
1. Charges
1.1 In consideration of the provision of the Services by the Supplier, the Customer shall pay the Charges.
1.2 All Charges will increase on each anniversary of the Effective Date by an amount equal to the percentage increase in CPI over the preceding 12 months plus 3.9%.
2 Other Charges
2.1 On occasion additional Charges may be made for service provision which falls outside the scope of the contractual arrangement.
2.2 Activity outside of the Business Day is charged at double time (Mon-Fri 8:30am to 5:30pm) unless otherwise agreed in writing within the quotation.
2.3 No call-out charge applies during the Business Day; however, the minimum charge while on site is 2 hours, which is dependent on the consultant's level, unless otherwise agreed in writing within the quotation.
2.4 If applicable, Charges for additional travel and parts at prevailing rates will be invoiced as separate invoice line items at pre-agreed costs.
2.5 Prices exclude VAT.
3. PAYMENT PROCESS
3.1 Croft shall be entitled to submit an invoice and the Customer shall pay to Croft for the Services and / or Additional Services within 30 days of the date of invoice.
3.2 Where the Croft provides Additional Services, the Customer shall pay to Croft the Additional Service Charges specified in accordance with paragraph 3.1 above.
SCHEDULE 4 – DATA PROTECTION
1.1 Without prejudice to the generality of clause 1.1, Croft shall, in relation to any personal processed in connection with the performance by Croft of its obligations under this Agreement: 1.1.1 process that Personal Data only on the documented written instructions of the Customer (which are set out in the Appendix to this Schedule 4) unless the Croft is required by applicable law to otherwise process that Personal Data. Where Croft is relying on applicable laws as the basis for processing Personal Data, Croft shall promptly notify the Customer of this before performing the processing required by applicable law unless that law prohibits Croft from so notifying the Customer;
1.1.2 ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
1.1.3 ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential;
1.1.4 not transfer any Personal Data outside of the UK unless the prior written consent of the Customer has been obtained (such consent not to be unreasonably withheld or delayed) and the following conditions are fulfilled:
(a) the Customer or Croft has provided appropriate safeguards in relation to the transfer;
(b) the data subject has enforceable rights and effective legal remedies;
(c) Croft complies with its obligations under the Data Protection Laws by providing an adequate level of protection to any Personal Data that is transferred; and
1.1.5 assist the Customer, at the Customer's cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Laws with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
1.1.6 notify the Customer without undue delay on becoming aware of a Personal Data Breach;
1.1.7 at the written direction of the Customer, delete or return Personal Data and copies thereof to the Customer on termination of the agreement unless required by applicable laws to store the Personal Data; and
1.1.8 maintain complete and accurate records and information to demonstrate its compliance with this Schedule 4 and (subject to the Customer providing reasonable prior notice of no less than 30 Business Days) allow for audits by the Customer or the Customer's designated auditor and immediately inform the Customer if, in the opinion of Croft, an instruction infringes the Data Protection Laws.
1.2 Croft may authorised a third party processor to process Personal Data in connection with this Agreement if: 1.2.1 the Customer is provided with an opportunity to object to the appointment of each third party processor within 5 Business Days after Croft supplies the Customer with full details in writing regarding such third party processor; and
1.2.2 Croft enters into a written contract with the third party processor substantially on that third party's standard terms of business and which Croft confirms reflect and will continue to reflect the requirements of the Data Protection Laws.
1.3 Those third party processors approved as at the commencement of this Agreement are as set out in the Annex to this Schedule 4.
1.4 As between the Customer and Croft, Croft shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to paragraph 1.2.
Appendix
1 Subject-matter of processing:
Personal Data made available by the Customer ancillary to the performance of services by Croft for the Customer under this Agreement. In performing the services under the Agreement, Personal Data will from time to time be visible to Croft and Croft Personnel in addition from time to time Personal Data may be processed in order to test the Supported System.
2 Duration of the processing:
For the duration of this Agreement or longer as required by law.
3 Nature and purpose of the processing:
The performance, administration and enforcement of this Agreement and the performance of obligations under TUPE.
4 Type of Personal Data:
Employee name, address, phone number, sex, education and qualifications.
5 Categories of Data Subjects:
Employees, Suppliers & Clients.
6 Third party processors
[None]
7 Specific processing instructions:
None.
SCHEDULE 5 – EXCEPTED SERVICES
1 For the avoidance of doubt, the Services shall not include the following and any work carried out by Croft in connection with any of the following shall be Additional Services:
1.1 the correction of any fault due to:
(a) the alteration modification or service of the Supported System by any party other than Croft without Croft's prior written consent;
(b) the Customer’s failure to maintain a suitable environment for the Supported System at the Premises in accordance with Croft's specifications therefore including without limitation failure to maintain a constant power supply, air conditioning, heating or humidity control;
(c) the Customer’s or patron's neglect or misuse of the Supported System or its failure to operate the Supported System in accordance with Croft's instructions or for the purposes for which it was designed;
(d) moves, additions or changes aligned to internal building alterations;
(e) any on site visits required, that are not due to:-
(i) Failure of any product supplied directly by Croft that is still under its 12 months statutory warranty period; or
(ii) Material and tangible negligence of Croft, its subcontractors or agents;
(e) any defect or error in any software used upon or in association with the Supported System;
(f) the Customer’s failure, inability or refusal to afford Croft's personnel proper access to the Supported System;
(g) malicious or accidental software deletion, corruption or re-configuration;
(h) malicious or accidental physical abuse;
(i) any virus, malware or ransomware issue;
(j) accident or damage to the Supported System including without limitation, damage caused by environmental conditions such as fire, flood, earthquake, water, wind, lightning, transportation, vandalism or burglary, building structural issues, excessive heat or cold, or contamination of any type;
(k) damage caused by faulty hardware, where such hardware is not under cover by Croft or in any case is in excess of 6 years old;
(l) a third party installation has rendered hardware or software covered by this contract as unusable or disabled in part;
(m) any consumable items such as a, battery or standard maintenance kit item;
(n) any contamination to include but not limited by water, tea, coffee, paper clips, staples, or similar;
(o) the support, maintenance and restoration of third party software unless stated otherwise in this agreement the quotation or service description;
(p) the management of third parties responsible for the delivery of services outside the scope of this Agreement;
(q) any software, hardware or item not specified in the signed quotation or service description.
(r) any hardware 6 years old or more unless by special arrangement;
(s) the painting or refinishing of the Supported System;
(t) the relocation or transportation of the Supported System;
(u) electrical work external to the Supported System; or
(v) the provision of supplies and consumables for use in association with the Supported System.
1.2 When the Customer requests Additional Services, Croft will use its reasonable endeavours to accommodate the Customer’s requirement. This includes services provided for Supported System not listed in the signed quotation or service description, and when requesting Croft's assistance, the Customer accepts this may incur additional Charges.