Terms and Conditions for the supply of IT Equipment and Services
1.1 The definitions and rules of interpretation in this clause apply in these general conditions (Conditions).
agreement: an agreement between you and us for the provision of the Services including these conditions.
Charges: has the meaning given in clause 4.1.
Customer: the person who purchases the Services from us and whose details are set out in the Agreement.
Customer Data: means all information provided by the Customer to the Supplier when using the Services.
Data Protection Legislation: means (i) the DPA, the GDPR and other applicable laws concerning data protection, privacy or confidentiality and any subordinate or related legislation; (ii) any guidance , codes of practice or instruction issued by the UK Information Commissioner’s Office (or any other relevant supervisory authority) from time to time; and (iii) any replacement to, or amendment of, any of the foregoing; and (iv) any other laws concerning data protection, confidentiality or privacy which may come into force from time to time.
DPA: the Data Protection Act 1998 (as amended).
Equipment: all and any of your hardware and software systems and equipment in relation to which we have agreed provide Services under the agreement.
Excluded Loss: loss or deferment of profit, loss of revenue, loss of use, business interruption, loss of contract, loss of reputation, credit or goodwill, loss or corruption of data or information, loss of opportunity and (except where specifically provided to the contrary elsewhere in the agreement) costs resulting from non-operation or increased expense of construction, operation or maintenance, cost of finance and cost of purchased or replacement equipment or systems howsoever caused including negligence or breach of duty.
GDPR: Regulation (EU) 2016/679 of the European Parliament and the Council of 27 April 2016, otherwise known as the General Data Protection Regulation.
Inclusive Support Services: the services described as such in the agreement.
Normal Working Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Services: all or any of the services which we provide to you under the agreement (including the Inclusive Services and the Additional Services) and “Service” means any of the Services.
Site(s): each and any of your premises at which we will provide the Services and which are listed in the agreement and “Site” shall mean any of them. We, us or our: ACE IT a partnership of limited companies whose address is at Monarch House, Chrysalis Way Business Park, Eastwood, NG16 3RY You or Your: the person to whom we have agreed to provide Services under the agreement.
1.2 Condition and paragraph headings shall not affect the interpretation of the agreement.
1.3 Any reference to a person includes any individual, partnership, body corporate, unincorporated association, government body or agency.
1.4 Words in the singular shall include the plural and vice versa.
1.5 A reference to writing or written includes faxes and e-mail.
1.6 Where the words include(s), including or in particular are used in the agreement, they are deemed to have the words without limitation following them and where the context permits, the words other and otherwise are illustrative and shall not limit the sense of the words preceding them.
1.7 Any obligation in the agreement on a person not to do something includes an obligation not to agree, allow, permit or acquiesce in that thing being done.
2. Our Obligations
2.1 We agree that we will provide each Service to you in accordance in all material respects with the description of that Service as set out in the agreement.
2.2 We will endeavour to meet any performance dates or times specified in the agreement or as may be agreed between us from time to time, but any such dates are estimates only and time for performance shall not be of the essence of the agreement.
2.3 We will use reasonable endeavours to work with any person who supplies or makes available hardware or software to you but responsibility for those products remains with the supplier of such hardware or software.
2.4 You agree that we may, in providing any of the Services utilise or make available to you products and services of any other person (including monitoring software products and applications) and which may be required to be installed on your Equipment in order to assist in or facilitate the provision of the Services.
3. Your Obligations
3.1 You agree:
(a) to provide us with reasonable assistance to enable us to provide the Services;
(b) to provide us and our agents, sub-contractors and employees, such access to the your premises and the Equipment as is reasonably required to enable us to provide the Services;
(c) to provide, in a timely manner, such material, data and other information as we may request to enable us to provide the Services;
(d) to be responsible (at its own cost) for preparing and maintaining each Site for the supply of the Services;
(e) to inform us of all health and safety rules and regulations and any other reasonable security requirements that apply at any of the Sites;
(f) where necessary for the delivery of any Services, to provide remote access your systems at the Site and ensure the availability of such facilities throughout the term of the agreement. We will have no liability to you under the agreement to the extent this results from the failure to provide adequate remote access facilities; and
(g) to comply with any reasonable requests by us in connection with the Services.
3.2 If our performance of any of our obligations under the agreement is prevented or delayed by any act or omission by you, your agents, sub-contractors or employees or any other circumstances beyond our reasonable control, we shall be relieved from our obligations under the agreement and shall not be liable for any costs, charges, losses or liabilities suffered or incurred by you arising directly or indirectly from such any such circumstance.
3.3 You agree that you will not, without our prior written consent, at any time prior to the date which is six months after the termination of the agreement, solicit or entice away from us or employ or attempt to employ any person who is, or has been, engaged as an employee or sub-contractor of us in the provision of the Services to you.
3.4 You are responsible for keeping a record of all passwords and usernames in relation to your systems and equipment and we shall not be bound to keep a record of these.
4. Charges and Payment
4.1 For the provision of the Services, you agree to pay the charges as set out in the agreement or as described in our standard price list from time to time (Charges) without deduction, counterclaim or set off. The Charges are payable at the times specified in the agreement. If not specified in the agreement, you agree to pay the Charges for the Services within thirty (30) days from receipt of our invoice. Time for payment shall be of the essence of the agreement.
4.2 The Charges exclude:
(a) any expenses reasonably incurred by us in connection with the Services, the cost of any materials and the cost of services reasonably and properly provided by third parties and which are required for the supply of the Services. Such expenses, materials and third party services shall be invoiced by us at cost; and
(b) any VAT, which we will add to our invoices at the appropriate rate.
4.3 Without prejudice to any other right or remedy that we may have, if you fail to pay any of our invoices on the due date, we may:
(a) charge interest on such sum from the due date for payment at the annual rate of 4% above the base lending rate from time to time of Barclays Bank plc, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment; and (b) we may suspend all Services (or any of them) until payment has been made in full.
4.4 All sums payable by you under the agreement shall become due immediately on its termination, despite any other provision. This condition is without prejudice to any right to claim for interest under the law, or any such right under the agreement.
5.1 Each party (Receiving Party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to it by the other party (the “Disclosing Party”), its employees, agents or sub-contractors and any other confidential information concerning the Disclosing Party’s business or its products which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidential material to such of its employees, agents or sub-contractors as need to know the same for the purpose of discharging its obligations under or in connection with the agreement, and shall be responsible for any breach of this condition 5.1 by such employees, agents or sub-contractors.
5.2 Either party shall be permitted to disclose any confidential information if and to the extent it is required to do so by law or any regulatory body to which it is subject.
6. Data Protection
6.1 Each party agrees that, in performance of its respective obligations under this Agreement, it shall comply with the provisions of Data Protection Legislation to the extent it applies to each party.
6.2 You acknowledge that we have no control over any of the Customer Data and we do not monitor the content of the Customer Data.
6.3 You warrant that:
(a) you have obtained all consents, permission, licences and other authorisations for the processing of the Customer Data by us in the performance of this Agreement;
(b) the Customer Data is up-to-date and accurate and reviewed regularly and updated, if necessary; and
(c) the Customer Data does not:
(i) breach any Data Protection Legislation or any applicable law; or
(ii) infringe any third party intellectual property.
6.4 To the extent that any of the Customer Data constitutes personal data or special categories of (sensitive) personal data for the purposes of the Data Protection Legislation, you acknowledge and agree that you are the data controller for the purposes of the Data Protection Legislation. We will process such data in accordance with the provisions of the Data Protection Legislation and only to the extent necessary for the satisfactory provision of the Services. We shall only process the Customer Data in accordance with your instructions, unless Data Protection Law allows otherwise.
6.5 We will not, without your prior written permission (not to be unreasonably withheld, delayed or conditioned):
(a) transfer the Customer Data outside of the European Economic Area;
(b) disclose the Customer Data to any third party (save as required in order to provide the Services); or
(c) engage a sub-processor (save for as required in order to provide the Services, and in any event subject to written terms of processing which are the same or similar to this clause 6).
6.6 Each party will inform the other without delay if:
(a) it should receive any complaint, notice or communication relating to the processing of the Customer Data or to its compliance with the Data Protection Legislation;
(b) it becomes aware of the loss of, or unauthorised access to, the Customer Data; or
(c) any data subject exercises its rights under the Data Protection Legislation,
and both parties will co-operate in responding to such matters and in meeting each other’s requirements under the Data Protection Legislation generally.
6.7 We will promptly at your request and cost, assist you in the fulfilment of any obligation arising out of, or in connection with, the exercise by a data subject of its rights under Data Protection Law at your reasonable cost.
6.8 We will limit access to the Customer Data only to those of our employees or sub-contractors who need access to it in order for us to provide the Services. Such persons will be subject to a duty of confidence in respect of any data that they may handle.
6.9 At your request and cost, we shall provide to you an electronic copy of all your personal data that is held by us in the format reasonably specified by you.
6.10 We shall promptly inform you if any of your personal data is lost or destroyed or becomes damaged, corrupted, or unusable.
6.11 We shall ensure that all our employees who will access the Customer Data:
(a) have undertaken training in the laws relating to handling personal data; and
(b) are aware both of our duties and their personal duties and obligations under such laws and this Agreement.
6.12 We will keep full records of consents, processing instructions, all policies concerning data protection and/or information security, internal training and audits undertaken and all other documentation that may evidence our compliance with this clause 6.
6.13 We will take appropriate technical and organisational measures against the unauthorised or unlawful processing of the Customer Data that we hold and against the accidental loss or destruction of, or damage to, that of the Customer Data that we may hold.
6.14 You shall indemnify us in respect of all loss, damage, cost, expense (including legal fees), administrative sanction, fine, penalty, action or other liability that we incur as a result of any breach of this clause 6 and/or Data Protection Legislation and, without limiting the foregoing, you shall indemnify us in respect of all loss, damage, cost, expense (including legal fees), administrative sanction, fine, penalty, action or other liability incurred as a result of enquiry or complaint by a data subject or enquiry or investigation by the Information Commissioners Office or such other organisation carrying out the same or similar functions as in place at the relevant time.
6.15 We will indemnify you and keep you indemnified and defend you at our own expense against all direct costs, claims, damages, fines or expenses incurred by you or for which you may become liable due to any failure by us to comply with any of our obligations under this clause 6.
7. Limitation of Liability
7.1 This condition 7 sets out our entire financial liability to you in respect of:
(a) any breach of the agreement;
(b) the provision of the Services; and
(c) any representation, statement or tortious act or omission (including negligence) arising under or in connection with the agreement;
(d) or otherwise under or in connection with the agreement.
7.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the agreement.
7.3 We do not limit or excludes our liability to you under the agreement:
(a) for death or personal injury resulting from our negligence; or
(b) for any damage or liability incurred by you as a result of fraud or fraudulent misrepresentation by us; or
(c) for any liability incurred by you which cannot be limited or excluded by us by law.
7.4 Except as provided in condition 7.3:
(a) we will have no liability for any Excluded Loss;
(b) our total liability to you in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with our performance or contemplated performance of the agreement or otherwise under or in connection with the agreement shall be limited to the aggregate of the Charges for the Services paid by you to us during the 12 months preceding the date on which the claim arose (or, during the first 12 months, the aggregate of the Charges paid by you on the date on which the claim arose); and
(c) our aggregate liability to you of any kind (including for breach of contract and negligence) in connection with the agreement shall not exceed the total Charges paid by you pursuant to the agreement.
8.1 Without prejudice to any other rights or remedies which the parties may have, either party may terminate the agreement without liability to the other immediately on giving notice to the other if:
(a) the other party commits a material breach of any of the terms of the agreement and (if such a breach is remediable) fails to remedy that breach within 14 days of notification in writing of the breach; or
(b) an order is made or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order of the other party (or where the Customer is an individual, the Customer becomes subject to a bankruptcy petition or order); or
(c) an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the other party, or notice of intention to appoint an administrator is given by the other party or its directors or by a qualifying floating charge holder; or
(d) a receiver is appointed of any of the other party’s assets or undertaking, or circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other party, or if any other person takes possession of or sells the other party’s assets; or
(e) the other party makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way; or
(f) the other party ceases, or threatens to cease, to trade.
8.2 If we terminate the agreement under condition 8.1 for any reason:
(a) you agree to pay our outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, we may submit an invoice, which shall be payable immediately on receipt;
(b) you agree to return any of our property in your possession (or allow us access to the your premises to enable us to collect it); and
(c) the accrued rights of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected.
8.3 We may suspend and/or stop access to the Services, either in whole or in part:
(a) in an event of emergency and/or to safeguard the integrity and security of its network and/or maintain, repair or enhance the performance of its network;
(b) if required to do so by law (including where directed to do so by a regulatory authority);
(c) to comply with an order, instruction or request of government, an emergency services organisation, or other competent administration;
(d) if we become entitled to terminate the agreement; or
(e) if have the right to do so under the agreement; and we will have no liability to you in respect of any such suspension.
9.1 No variation of the agreement will be effective unless it is in writing and signed by or on behalf of each of the parties.
9.2 Neither party shall have any liability to the other under the agreement if it or any of its sub-contractors or suppliers is prevented from, or delayed in, performing its obligations under the agreement (other than the Customer’s obligation to pay the Charges) or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control.
9.3 Failure to exercise, or any delay in exercising, any right or remedy provided under the agreement or by law shall not constitute a waiver of that (or any other) right or remedy, nor shall it preclude or restrict any further exercise of that (or any other) right or remedy. No single or partial exercise of any right or remedy provided under the agreement or by law shall preclude or restrict the further exercise of any such right or remedy.
9.4 A waiver (which may be given subject to conditions) of any right or remedy provided under the agreement or by law shall only be effective if it is in writing and shall apply only to the party to whom it is addressed and for the specific circumstances for which it is given. It shall not prevent the party who has given the waiver from subsequently relying on the right or remedy in other circumstances.
9.5 The agreement and any documents forming part of or referred to in it constitute the whole agreement between us and supersede any previous arrangement, understanding or agreement between them relating its subject matter. Each party acknowledges that it does not rely on any statement, representation, assurance or warranty of any person (whether a party to the agreement or not) other than as expressly set out in the agreement or those documents. Each party agrees that the only remedies available to it arising out of or in connection with a representation shall be for breach of contract as provided in the agreement. Nothing in this condition shall limit or exclude any liability for fraud.
9.6 Nothing in the agreement is intended to, or shall operate to, create a partnership between the parties, or to authorise either party to act as agent for the other, and except as expressly provided in the agreement, neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
9.7 A person who is not a party to the agreement shall not have any rights under or in connection with it.
9.8 Notice given under the agreement shall be in writing, sent for the attention of the person, and to the address or fax number, given in the agreement (or such address, fax number or person as the relevant party may notify to the other party in writing) and shall be delivered personally, sent by fax or sent by pre-paid, first class post or recorded delivery. A notice is deemed to have been received, if delivered personally, at the time of delivery, in the case of fax, at the time of transmission, in the case of pre-paid first class post or recorded delivery, 48 hours from the date of posting and, if deemed receipt under this condition is not within business hours (meaning 8:30 am to 5:30 pm Monday to Friday on a day that is a Normal Working Day), at 8:30 am on the first Normal Working Day following delivery. To prove service, it is sufficient to prove that the notice was transmitted by fax, to the fax number of the party or, in the case of post, that the envelope containing the notice was properly addressed and posted.
9.9 The agreement shall be governed by, and construed in accordance with, the law of England and Wales and the parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the agreement or its subject matter.