Terms and conditions

These terms and conditions shall govern the Company’s provision of IT hardware and software support to the Customer.

1. Definitions

The definitions and rules of interpretation in this clause apply in these Conditions.

“Business Day”	a day other than a Saturday, Sunday or a public holiday;
“Commencement Date”	the date upon which the Company commences providing the Services;
“Company”	Information Technology Specialists Limited, a company registered in England and Wales with company number 6466681 whose registered office is 85-87 Bayham St, London NW1 0AG;
“Conditions”	these terms and conditions for the provision of Services by the Company;
“Contract”	means the agreement between the Company and the Customer for the provision of the Services incorporating the order form and these Conditions;
“Customer”	the customer as specified above;
“Fault”	any defect, error, failure or other problem in the System which causes the System not to function in accordance with its specifications in any material way, but expressly excluding compatibility and interface issues with any hardware to the extent that such compatibility and interface issues are due to an error or defect in such hardware;
“Hardware”	hardware items which the Customer may intend to purchase for use in connection with its System;
“Know-how”	information which the Customer owns or possesses, which the Company requires for the provision of the Services;
“Premises”	the location where the Products are installed, as defined in the Service Description section of the Contract;
“Products”	the Hardware and/or Software items to which the Services will apply according to these Conditions;
“Services”	the Software support services (and Hardware procurement/installation, where appropriate and if requested) provided by the Company to the Customer subject to these Conditions;
“Software”	standard issue third party software (i.e. not bespoke software) used by the Customer on its System;
“Support Charge”	monthly charge as specified on the order form , payable in advance;
“Support Hours”	the Company's normal working hours of 8.30 am to 5.30 pm GMT on a Business Day;
“Company Maintenance and Support Centre”	the Company's premises, accessible on telephone;
“System”	the Hardware, Software and associated operating system software used by the Customer which may comprise one or more computer systems.

1. Term

The Contract shall continue for a period of 12 calendar months from the Commencement Date (“Term”) but is terminable by either party giving at least three months’ written notice of termination to the other.

1. Cover and provision of engineers

3.1 Unless otherwise agreed, all Services will be performed within the Support Hours and if any Services are requested to be performed outside the Support Hours, clause 3.3 will apply.

3.2 In the event that the incident in question cannot be resolved by the Company by remote support access to the Customer’s systems, the Company is able to arrange for an engineer to visit the Customer’s premises for the purposes of, where possible, resolving the incident, for no additional cost, subject to clause 3.3.

3.3 A visit by an engineer at any time outside the Support Hours can be arranged and will be charged for at a cost of £90 per hour plus VAT, or part thereof, thereafter.

3.4 A visit by an engineer requested for purposes other than resolving an incident may be charged at a different rate. This rate will be provided to the Customer at the point of request and be dictated by the skills of the engineer required.

1. Software Services

The Company will provide the following Services in respect of the Software:

4.1 remote access Fault diagnosis and where possible recommendations for correction subject to the limitations imposed by contractual restrictions of any third party, following the reporting of any Software problem by telephone by the Customer to the Company's telephone helpline support facility. The Customer shall provide as much detail as is reasonably possible regarding any reported Fault.

The Company will use its reasonable endeavours to resolve a Fault via remote support access within the Support Hours. The parties agree that resolution times are not guaranteed and the Company shall in no way be liable for any delay in resolving any Fault.

For all Faults, the Company will use all reasonable endeavours to generate a fix which may include modifying the Software (subject to restrictions in the relevant Software licence(s)) to conform to its specification and transmitting the modification to the Customer as soon as reasonably possible. Where feasible, the Company may provide a temporary workaround to the Customer. In no event will the Company be required to correct a Fault reported by the Customer, and the Company reserves the right to abandon attempts at a fix where, in the Company's sole opinion, a successful outcome cannot be achieved.

Diagnosis and solution of a Fault will generally be carried out remotely from the Site. If it becomes necessary to carry out the Services at the Site, such work will be carried out by an engineer instructed by the Company;

4.2 in the event that the Fault cannot be corrected through remote access, the Company will use all reasonable endeavours to provide attendance by an engineer at the Site for the purposes of Software and network maintenance that the Company determines is necessary within 4 working hours (within Support Hours) from the time of receipt of the Customer's call and, in the event that the Customer requests the provision of an engineer to attend on site at any time outside Support Hours, the Company reserves the right to make a charge pursuant to clause 3.3 for the provision of such engineer.  The Customer will be informed at the time of making the request whether the charge will be applied;

4.3 telephone support during the Support Hours on the routine use and operation of the Software and the Customer’s network;

4.4 diagnosis and telephone advice only (that is, remote access will not be provided) to employees of the Customer who experience Faults with Software with mobile devices upon such employees contacting the Company Maintenance and Support Centre.  In the event that a successful outcome to such a Fault is not achieved, the Customer will be required to contact the Company when such mobile device is returned to the Customer’s premises;

4.5 telephone advice and assistance during the Support Hours on user procedures and on ideas and methods intended to assist the Customer in obtaining the best possible use from any Software and/or the Customer’s network;

4.6 assistance with installing a new version of any Software at the Site during the Support Hours and advice on use of the new version; and

4.7 assistance and advice in respect of Software procurement whether in terms of an appropriate supplier of such Software or in terms of price.

1. Hardware Services

The Company, at the Customer’s request, can provide the following Services in respect of Hardware:

5.1 assistance and advice in respect of Hardware procurement whether in terms of an appropriate supplier of such Hardware or in terms of price;

5.2 installation at the Premises of the Hardware procured by the Customer, such installation being at a cost to be agreed between the parties.  The IT equipment to which such Hardware is to be installed should be pre-configured to standard builds (for example, workstations with standard software configurations);

5.3 unless otherwise agreed by the parties, it shall be the Customer's responsibility to source and pay for all replacement parts and, if agreed, the provision of an engineer by the Company to attend to the fitting of such replacements shall incur an additional cost;

5.4 throughout the Term, the Company will perform preventive maintenance routines on the Hardware where such routines are applicable. At the Company's option, such preventive maintenance calls may be performed in conjunction with a Customer-requested call for remedial maintenance. All preventive maintenance will be performed during the Support Hours, although if requested by the Customer and agreed to by the Company, preventive maintenance outside the Support Hours may be provided at the Company's then current charge rates for such out-of-hours Services; and

5.5 in the event that hardware used by the Customer during the Term malfunctions, the Customer shall be expected to pursue the malfunction as a warranty claim (where the item is within its warranty period) against the supplier of such hardware.  The Company, at the request of the Customer and to a reasonable extent (in the sole opinion of the Company) will provide assistance in communications with any such supplier in determining how such hardware is to be returned to the supplier.  The Company cannot guarantee a successful outcome to such communications and accepts no liability in that regard;

5.6 a telephone help-line support facility is available to the Customer during the Support Hours for the purposes of reporting equipment malfunctions.

1. Service Exclusions

6.1 The Company reserves the right not to provide the Services and to charge for costs and expenses incurred if a call is not warranted, access to the System is hindered or the environmental conditions at the Site are considered by the Company to be unsafe or hazardous.

6.2 The Services do not include:

6.2.1 operating supplies and accessories such as magnetic media and disk packs and other consumables, which must be paid for by the Customer;

6.2.2 electrical or signal cabling work in connection with the System or installation, decommissioning, removal, relocation or reconfiguration of Products; or

6.2.3 Hardware and Software not covered by this Contract.

6.3 The Company reserves the right at any time to give notice to the Customer that a Product cannot continue to be properly or economically repaired because of excessive wear or deterioration and the Company further reserves the right not to service such Product after such notice has been given.

1. Account Management

The Company, at no additional cost, will provide to the Customer the following:

7.1 ongoing account management to resolve any outstanding service issues; and

7.2 at the request of the Customer, the co-ordination of medium-term IT planning.

1. Disclaimers

8.1 Whilst the Company will use its reasonable endeavours to perform the Services promptly, no warranty is given in respect of any times for response or performance by the Company, and time will not be of the essence.

8.2 The Company is not liable for delay arising from any industrial dispute or any cause outside its reasonable control and any agreed timescale will be subject to reasonable extension in the event of such delay. If such delay or failure continues for at least 30 days either party will be entitled to terminate the Contract by notice in writing to the other.

8.3 Provision of the Services does not imply any guarantee or representation that the Company will be able to assist the Customer in achieving any results from any Products which are not technically feasible. Subject to this, any services which are outside the scope of this Contract will, at the Customer's request and at the Company's sole option, be provided on such terms as the parties may agree from time to time and shall incur additional charges.

8.4 Provision of the Services does not imply any guarantee that the Company will be successful in correcting any Software malfunctions and the Company does not accept any liability in this connection.

8.5 The Company reserves the right to refuse to provide the Services at any time without refunding any sums paid by the Customer:

8.5.1 if any attempt is made, other than by the Company, to remove any defects or deal with any errors in the Products during the Term; or

8.5.2 if any development, enhancement or variation of the Products is carried out other than by the Company; or

8.5.3 if the Customer has failed to pay the Company in accordance with the provisions of these Conditions; or

8.5.4 if the Customer has failed to comply with any of its responsibilities under clause 9; or

8.5.5 where, in the reasonable opinion of the Company, the Customer's system has ceased to be capable of running the Software successfully for any reason.

1. Customer responsibilities

The Customer will:

9.1 keep the Company promptly informed of any addition to the number of workstations, laptops or servers which the Customer operates;

9.2 use the Products correctly and in accordance with their operating instructions and with suitable operating supplies;

9.3 designate named contacts who are either sufficiently senior or appropriately qualified and/or trained to an acceptable standard authorised to request Services, and inform the Company accordingly. Authorised use of the telephone helpline is limited to these designated contacts;

9.4 maintain procedures to facilitate reconstruction of any lost or altered files, data or programs to the extent deemed necessary by the Customer, and the Customer agrees that the Company will not be liable under any circumstances for any consequences arising from lost or corrupted data, files or programs. The Customer is solely responsible for carrying out all necessary backup procedures for its own benefit, to ensure that data integrity can be maintained in the event of loss of data for any reason;

9.5 be solely responsible for the security of its confidential and proprietary information, and not disclose such information to the Company except on a 'need to know' basis for the purposes of the Company's performance of the Services;

9.6 notify the Company promptly of any Product malfunction;

9.7 control the Site environmental conditions in accordance with any environmental operating ranges specified by the Company or other Product manufacturer;

9.8 regularly perform the various Customer routine and preventative maintenance and cleaning operations described in applicable user guides or as advised by the Company including but not limited to any operating and diagnostic checks and the regular inspection and, if necessary, cleaning, of disk packs and cartridges. The company shall not be liable for the cost of rectifying any damage caused to the System in the event that the Customer does not observe this undertaking;

9.9 keep records of the System's usage and performance if requested by the Company, in a mutually agreed format;

9.10 observe appropriate safety precautions in replacing parts which may be provided by the Company;

9.11 provide the Company with access to and use of such of the Customer's information (including any Know-how) and facilities reasonably necessary to service the Products;

9.12 make all the relevant Products freely available to the Company during any agreed preventative maintenance period to enable the Company to carry out the Services;

9.13 have a Customer representative who is familiar with the Customer's organisation, operations, procedures and business practices present at all times during the performance of remedial and preventative maintenance Services;

9.14 provide ready access to a telephone at the Premises on which external calls connected with the Services can be made and received by the Company's personnel or ebngineers;

9.15 ensure that only properly trained employees operate or use the System in accordance with the operating instructions and manuals supplied;

9.16 not make any modification or addition to the System, except with the Company's consent, which shall not be unreasonably withheld;

9.17 provide telephone and modem facilities to the Company's requirements for remote investigation of Software defects;

9.18 install the latest applicable software revisions and enhancements to the Software as soon as reasonably practicable, and in any event within 6 months, unless the parties agree otherwise;

9.19 be solely responsible for ensuring that all consents and licences are obtained and maintained in respect of the Hardware and the Software necessary for the performance of the Services by the Company, and warrant as such; and

9.20 warrant that the Software will by the Commencement Date be in reasonable working order and condition for the purpose of performing the Services.

1. Charges and payment terms

10.1 The Support Charge for the initial month is payable in advance of the Commencement Date.  The Customer will receive an electronic invoice each month from the Company as standard setting out the Support Charge for the following month and any reasonable expenses or other charges (including provision of onsite engineers) incurred in the previous month.  All sums are to be paid by direct debit and if any other form of payment is made, the Company shall be entitled to make a charge in the sum of £2.50 per month in respect of handling and administrative costs.

10.2 Any labour provided or carried out and any parts which may be provided in connection with the installation of any Software, Hardware or networking outside of normal maintenance or support (which includes, but is not limited to, replacement of old or faulty parts) may be charged by the Company to the Customer.

10.3 The Support Charges are based on the Customer having no more than 2 workstations or laptop computers, one server and a network appropriate to support such workstations/printers.  The Customer, pursuant to clause 9.1, shall inform the Company of any increases to the network/computers operated by the Customer.

10.4 All invoices are payable within 7 days from receipt. All charges are exclusive of VAT and any similar taxes, which will be applied in accordance with prevailing legislation in force at the tax point date.

10.5 Payments which are not received when payable will be considered overdue and remain payable by the Customer together with interest at 4% above the base rate for the time being of Lloyds TSB Bank plc for late payment from the due date to the date of actual payment, whether before or after any judgment, and independent of such judgment. This interest will accrue on a daily basis and be payable on demand.

10.6 Notwithstanding the above provision for late payment, in this event the Company may at its option, and without prejudice to any other remedy at any time after payment has become due, immediately terminate or temporarily suspend the provision of the Services.

10.7 If the Company becomes entitled to terminate the Contract for any reason, any sums then due to the Company will immediately become payable in full.

10.8 Payment of all sums due to the Company shall be made without any set-off whatsoever.

1. Variation of Charges

Without prejudice to clause 18.2.2, the Company will be entitled to review and increase its Support Charges during the Term (but not more than once during the Term) upon giving not less than 60 days' notice to the Customer, subject to the Company being able to increase its Support Charges at any time on 30 days' notice to Customer to take account of any increase in any fees or charges payable by the Company to third parties in connection with provision of the Services.

1. Confidentiality

12.1 The parties recognise that under this Contract they may each receive trade secrets and confidential or proprietary information of the other party, including but not limited to commercial information, products, customers, business accounts, finance or contractual arrangements or other dealings, program source and object codes. All such information which is either marked 'Confidential' or stated at the time of disclosure and subsequently confirmed in writing to be confidential constitutes 'Confidential Information'. Each party agrees not to divulge Confidential Information received from the other to any of its employees, officers, agents, subcontractors or other third parties without the prior written consent of the disclosing party except to the extent absolutely necessary to perform its obligations hereunder. This shall not prevent a party from using or disclosing any information:

12.1.1 which the party can prove was rightfully in the possession of such party prior to the commencement of enquiries regarding the provision of Services;

12.1.2 which is or enters into the public domain;

12.1.3 which is, and only to the extent that it is necessary, required to be disclosed by law provided that party notifies the other party prior to disclosure.

12.2 Each party shall ensure that its officers, employees, agents and subcontractors and any other third party to which Confidential Information is disclosed are bound by confidentiality obligations at least equal to those under these terms and each party agrees that any breach by such persons shall be deemed to be a breach by that party of its obligations hereunder. Nothing herein obligates either party to disclose any Confidential Information to the other.

1. Ownership of Software, Data, Information and Know-how

13.1 Software

13.1.1 The Customer owns or is authorised to sub-license all copyright and other intellectual property rights in the Software.

13.1.2 The Customer grants a non-transferable, non-assignable, non-exclusive licence to the Company to use the Software during the Term on the terms and conditions set out in this clause (the 'Licence') for the purposes of providing the Services.

13.1.3 Subject to clause 13.1.4, the Company and Customer agree that:

13.1.3.1 the Software and all copies of it will remain at all times the property of the Customer and that the Company is not entitled to any rights or interests in the Software other than those expressly granted in this Licence;

13.1.3.2 the Software is confidential information of the Customer and the Company will not disclose any of the Software or supply any copies of any of it to any person other than in the performance of the Services under the terms of this Licence, including appropriate express obligations of confidentiality;

13.1.3.3 the Company will not use any Software directly or indirectly otherwise than in connection with providing the Services;

13.1.3.4 the Company will not permit any copy of the Software to be made except for reasons of providing the Services.

13.1.4 Copyright and all other intellectual property rights made by the Company in any modifications or enhancements to the Software will vest absolutely in the Company and the Company reserves the right to grant licences to use such modifications and enhancements to the Customer and any third parties.

13.1.5 The Customer will indemnify the Company against any expense, loss or damage incurred by the Company as a result of any claim or allegation that the Company's licensed use of the Software infringes the intellectual property rights of a third party.

13.1.6 Upon termination of the Contract, the Licence will terminate, and the Company will return any Software in its possession to the Customer.

13.2 Data, Information and Know-how

13.2.1 The Customer grants the Company and any engineers appointed by the Company a non-exclusive, royalty-free licence to use Know-how for the purposes of fulfilling the Company's obligations to provide the Services. The Company undertakes not to use or otherwise deal with the Know-how for any other purpose.

13.2.2 For the avoidance of doubt, the parties agree that all data and information passed to the Company by the Customer or generated in the course of the Services will remain at all times the property of the Customer. The Customer grants to the Company a non-exclusive, royalty-free licence to use the Customer's data, information and Know-how as necessary for the purpose of fulfilling the Company's obligations under the Contract.

13.2.3 The Company will not acquire any right in the Customer's data and information. The Company will take all necessary steps to ensure that it will not use nor reproduce any such data, information or Know-how which comes into its possession or control except as required to provide the Services under the Contract.

13.2.4 The Customer will be responsible for maintaining secure copies and backups of all data and information.

1. Employment restriction

During the Term and for a period of 6 months from its termination for any reason, the Customer will not actively solicit or canvass the employment of any person employed by or acting on behalf of the Company who was assigned to work on the System during the Term. If the Customer is in breach of this condition, the Customer (recognising that the Company will suffer substantial damage) will pay to the Company by way of liquidated damages and not by way of penalty a sum equal to the gross annual sum paid to that person as salary or for services by the Company in the immediately preceding 12 months.