Smart Computers IT Support Terms Of Service

SMART COMPUTERS IT SUPPORT LIMITED

STANDARD TERMS AND CONDITIONS OF SERVICE

INTERPRETATION
- In these Conditions, the following definitions apply:

Charges: the charges for the supply of any Services and/or Equipment, as set out in or calculated in accordance with the Order.

Conditions: these terms and conditions, incorporating the applicable Service Specific Terms, as amended from time to time in accordance with clause 10.6.

Contract: the contract between the Supplier and the Customer for the supply of Services (including, where applicable, any Equipment), in accordance with these Conditions and each Order.

Contract Date: the date on which a Contract between the Customer and the Supplier is formed and comes into existence, as determined pursuant to clause 2.1.

Customer: the legal person who contracts to purchase the Services from the Supplier, as specified in the Order.

Data Services: where applicable, the data services to be provided by the Supplier to the Customer, as described in an Order.

Fixed Network Services: where applicable, the voice services to be provided by the Supplier to the Customer, as described in an Order.

Equipment: the equipment (if any) to be supplied by the Supplier to the Customer, as set out in an Order.

Extended Term: means each automatic rolling extension applicable to the Services following the Minimum Term which, unless otherwise specified in the Service Specific Terms and/or Order, shall be thirty (30) days.

Installation Services: the services relating to the installation by the Supplier of the Equipment (where applicable).

IT Support Services: where applicable, means the hardware and system support services to be provided by the Supplier to the Customer, as described in the Order, together with such other support services that the Supplier agrees to supply to the Customer from time to time.

Maintenance Services: where applicable, the maintenance services to be provided by the Supplier to the Customer, as described in an Order.

Marketing Services: where applicable, the marketing services to be provided by the Supplier to the Customer, as described in an Order.

Minimum Term: the minimum contract term that applies to each of the Services which, unless otherwise specified in the Service Specific Terms and/or Order, shall be the period of thirty (30) days from the Service Commencement Date.

Order: the Customer’s order for Services as set out in a Quotation, such order being subject to these Conditions.

Order Confirmation: the confirmation document or other indication of acceptance issued by the Supplier in response to an Order.

Quotation: the document issued by the Supplier, setting out details of the Customer, the Services to be provided, Charges payable, and other terms relevant to the performance of the Contract. The Quotation may be prepared, sent, signed or returned either electronically or physically.

Service Commencement Date: the date for commencement of the Services, being (i) as specified in the Order; (ii) if not specified in the Order, as determined in accordance with the applicable Service Specific Terms; or, if neither of the foregoing apply, (iii) the Contract Date.

Service Specific Terms: means the (i) service terms applicable to Data Services and Fixed Network Services, shown in Appendix 1; (ii) service terms applicable to the supply of Equipment, Installation Services and Maintenance Services, shown in Appendix 2; (iii) service terms applicable to IT Support Services, shown in Appendix 3; and (iv) service terms applicable to Marketing Services, shown in Appendix 4.

Services: the services to be supplied by the Supplier to the Customer, as set out in an Order, which may include any or all of the following:

Installation Services
Maintenance Services
Fixed Network Services
Data Services
IT Support Services
Marketing Services; and/or
Hosting Services.

Site(s): the Customer’s place(s) of business as specified in the Order where any Services are to be provided or carried out and/or (where applicable) Equipment is to be delivered and any Installation is to take place.

Specification: the description or specification of the relevant Services and/or Equipment provided in writing by the Supplier to the Customer, including as set out in the Order.

Supplier: means the member of the ‘We Do Your Group’ that enters into the Contract for provision of the Services, as set out in the Order. The Supplier in respect of each Contract shall be one of the following entities:

We Do Your Hosting Limited (company number 09667850);
We Do Your Communications Limited (company number 10450939);
We Do Your Marketing Limited (company number 11784025);
Smart Computers IT Support Limited (company number 10074950),

and the registered office address of each entity is 20 Apex Court, Bradley Stoke, Bristol BS32 4JT.

Third Party Provider: means any third party hardware, software and/or telecommunications provider on whose behalf the Supplier acts as an intermediary or reseller, or that the Supplier otherwise utilises for the provision of the Services.

Working Day: Monday to Friday excluding English bank and public holidays.

In these Conditions, the following rules apply:

any clause, schedule or other headings in these Conditions are included for convenience only and shall have no effect on the interpretation of the Contract;
a reference to a ‘party’ includes that party’s personal representatives, successors and permitted assigns;
a reference to a ‘person’ includes a natural person, corporate or unincorporated body (in each case whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns;
words in the singular include the plural and vice versa;
any words that follow ‘include’, ‘includes’, ‘including’, ‘in particular’ or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words;
a reference to ‘writing’ or ‘written’ includes any method of reproducing words in a legible and non-transitory form, including email; and
a reference to any law or legislation is a reference to that law or legislation as amended, recast, replaced, extended, re-enacted or consolidated from time to time and includes all subordinate legislation made from time to time under that legislation.

BASIS OF CONTRACT
- The sending of the Quotation by the Supplier to the Customer constitutes an invitation to treat and may be revoked or amended by the Supplier at any time. The Customer’s Order, whether by signing and returning the Quotation, otherwise indicating acceptance of the Quotation, or issuing a purchase order, shall constitute an offer to purchase the Services and/or Equipment specified in the Quotation, on and subject to these Conditions. The Supplier may (but shall not be obliged to) indicate acceptance of the Order by issuing an Order Confirmation and/or commencing performance of the Services thereunder. On the Supplier doing so, a binding Contract shall come into effect (Contract Date).

The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Supplier which is not set out in the Order or these Conditions. In particular, any samples, drawings, descriptive matter or advertising issued by the Supplier, and any descriptions or illustrations contained in the Supplier’s catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the services described in them. They shall not form part of the Contract nor have any contractual force.

These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing. In the event of any conflict between these Conditions, the Service Specific Terms and the Order, the order of precedence shall be: (i) the Order; (ii) the Service Specific Terms; and (iii) these Conditions.

The Customer warrants and represents to the Supplier that it is entering into the Contract for the purpose of its business, trade or profession and not as a consumer.

Except for Installation Services, which shall form part of a Contract for the supply of Equipment (if applicable), the provision of each of the Services shall constitute a separate Contract between the Customer and the relevant Supplier of those Services (irrespective of whether more than one or all of the Services are included in the same Order).

Where the Customer has entered into Contracts with more than one member of the ‘We Do Your Group’ as Supplier, it agrees that the liability of each Supplier shall be several and each Supplier shall be liable for the performance of its Contract(s) only and not those entered into with any other member of the ‘We Do Your Group’.

SUPPLY OF SERVICES AND PARTIES’ OBLIGATIONS
- The Supplier shall supply the Services to the Customer in accordance with the Contract in all material respects. The Supplier shall use commercially reasonable endeavours to deliver the Services on or by any date or dates specified in the Order, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.

The Supplier shall have the right to make changes to any Services which are necessary to comply with any applicable laws, regulations or health, safety and/or security requirements, or which do not materially affect the nature or quality of the relevant Services. The Supplier shall endeavour to provide reasonable prior notification of any such changes.

The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill, utilising suitably skilled and qualified personnel, and in accordance with all applicable laws and regulations.

The Customer shall, in connection with the performance of the Contract:

ensure that the terms of the Order and any information it provides in connection with its requirements and/or the Specification are complete and accurate;
comply, and procure that its employees, works, agents, and contractors comply with these Conditions and all applicable laws and regulations in connection with the access and use of the Equipment and Services (as applicable);
co-operate with the Supplier in all matters relating to the performance and receipt of the Services;
provide the Supplier, its employees, workers, agents, consultants and subcontractors, with access to the Customer’s Site(s) and also associated facilities, utilities, systems and equipment, as reasonably required by the Supplier for the proper performance of the Services;
provide the Supplier with such information, instructions, approvals and materials as the Supplier may reasonably require in order to supply the Services and/or Equipment, and ensure that the same is complete and accurate in all material respects;
prepare its Site(s) for the supply of the Equipment and/or Services (where applicable);
obtain and maintain all necessary licences, permissions and consents which may be required before the date on which the Services are to start (where applicable); and
comply with all applicable Service Specific Terms and any other applicable licence, end user, connection or similar terms and conditions imposed by the Supplier or a Third Party Provider.

The Customer agrees that the Supplier shall not be liable or responsible for any failure or delay in the provision of the Services due to or in connection with any third party infrastructure applicable to the supply of any Services, including but not limited to network connections, telecommunication lines, cabling and/or mobile networks.

The Customer is responsible and shall be liable to the Supplier for the use of the Services (including for any Charges incurred) by the actions of any of its employees and any other person who has been given access to use the Services by the Customer and any person who gains access to the Customer’s credentials for the Services. The Customer is responsible for implementing and maintaining effective security provisions to prevent unauthorised and/or fraudulent use of the Services.

If the Supplier’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission of the Customer or failure by the Customer to perform any relevant obligation or comply with any obligation or policy under the Conditions (Customer Default):

the Supplier shall, without limiting its other rights or remedies, have the right to suspend performance of any Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent that the Customer Default prevents or delays the Supplier’s performance of any of its obligations;
the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations as set out in this clause 7; and
the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.

Without prejudice to clause 7 or any other remedy available to the Supplier, the Supplier shall be entitled to suspend the performance of any Service or terminate the Contract as it relates to the relevant Service without further liability to the Customer in the event that:

the Supplier is obliged to comply with any order, instruction or request of any competent governmental body;
the Supplier or a Third Party Provider terminates, suspends or ceases the provision of, the relevant Services;
the Supplier or a Carrier (as defined in the Service Specific Terms in Appendix 1) knows or reasonably suspects that the Services are being used fraudulently or unlawfully; or
the Supplier or a Carrier needs to carry out improvements or repairs to any networks or equipment relating to the applicable Services.

CHARGES AND PAYMENT FOR SERVICES
- The Charges for the Services shall be charged to and payable by the Customer in accordance with this clause 4 and any applicable Service Specific Terms.

The Customer shall pay any deposit specified in the Quotation within seven days of placing an Order for the Services set out therein.

In connection with Maintenance Services and/or IT Support Services, the Supplier may charge the Customer a call out fee based on its then current rate(s), where such a call out occurs based on incorrect information being provided to the Supplier by or on behalf of the Customer, or where a standard call out occurs but the Supplier is unable to gain access to the relevant Site(s), facilities, systems, Equipment and/or personnel within the times notified to the Customer for the call out.

The Supplier reserves the right to increase its Charges for its Services (including without limitation by revising any Tariff, as defined in Appendix 1), subject to the following provisions:

in the case of a standard increase implemented by the Supplier, it will give the Customer written notice of any such increase not less than thirty (30) days before the proposed date of the increase. If more than one increase is implemented per annum, and a second or subsequent increase is not acceptable to the Customer, it shall notify the Supplier in writing within fourteen (14) days of the date of the Supplier’s notice and the parties shall endeavour to reach a mutually acceptable position, failing which either party may terminate the relevant Services (but not any other Services or Contracts) without further liability on giving written notice to the other; or
in the case of an increase imposed by a Third Party Provider, or required due to a change in applicable laws or regulations or third party costs, the increase shall be equal to that imposed on or incurred by the Supplier and the Supplier shall endeavour to give the Customer reasonable prior notice of the increase. There shall be no right to contest an increase or terminate the Contract in these circumstances.

Except where otherwise specified in the Contract, the Customer shall pay each Supplier invoice:

by direct debit unless otherwise agreed in an Order, in which case payment shall be made within 14 days of the date of the invoice in full and in cleared funds to a bank account nominated in writing by the Supplier;
in GBP (£); and
without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law).

All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable for the time being (VAT). The Customer shall pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.

If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 4% per cent per annum above Barclays Bank plc’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.

The Supplier reserves the right to make additional charges for paper billing, late payment, reconnection, non-direct debit payment methods and incorrect fault reporting by the Customer. Such charges are as published by the Supplier from time to time, including on the applicable Supplier website.

The Supplier shall not be liable for any charges resulting from or in connection with fraudulent or unauthorised use of a Service and/or Equipment, including any usage fees charged by an applicable Third Party Provider. The Customer shall be solely responsible for and shall indemnify the Supplier in respect of all such charges, costs, fees and expenses.

CONFIDENTIALITY AND DATA PROTECTION
- Each party (receiving party) shall keep in strict confidence all technical or commercial know-how, specifications, or initiatives which are of a confidential nature and have been disclosed to the receiving party by the other party (disclosing party), its employees, agents or subcontractors, and any other confidential information concerning the disclosing party’s business, its products and services which the receiving party may obtain. The receiving party may disclose such of the disclosing party’s confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction. This clause 1 shall survive termination of the Contract.

The Data Processing Schedule appended to these Conditions shall apply to the processing of any Protected Data (as defined therein) by the Supplier In connection with the performance of the Services.

LIMITATION OF LIABILITY
- Nothing in the Contract shall limit or exclude the Supplier’s liability for:

death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
fraud or fraudulent misrepresentation;
breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession); or
any other liability that cannot lawfully be excluded or limited.

Subject to clause 1, the Supplier shall not be liable to the Customer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract for:

loss of profits;
loss of sales or business;
loss of agreements or contracts;
loss of anticipated savings;
loss of or damage to goodwill;
loss of use or corruption of software, data or information,

in each case whether direct or indirect, or

any indirect or consequential losses.

Subject to clause 1 and clause 6.2, the Supplier’s total liability to the Customer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract shall, in respect of all claims (connected or unconnected) in any consecutive 12 (twelve) month period, be limited to the equivalent of the total Charges paid by the Customer in that period.

TERMINATION
- Without limiting its other rights or remedies, the Supplier may terminate the Contract (in whole or in part) without further liability to the Customer by giving the Customer not less than 30 days written notice. Subject to the foregoing and the other terms herein (including any alternative termination provisions in the applicable Service Specific Terms), the Contract shall continue for the Minimum Term and shall automatically renew thereafter for each Extended Term, unless and until either party gives notice of non-renewal no less than thirty (30) days’ prior to the expiry of the Minimum Term or then current Extended Term.

Without limiting its other rights or remedies, either party may terminate the Contract (in whole or in part) with immediate effect by giving written notice to the other party if:

the other party commits a material breach of any term of the Contract that is irremediable or, if remediable, which the other party fails to remedy within twenty (20) Working Days of being notified in writing to do so;
the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
the other party is deemed unable to pay its debts either within the meaning of section 123 of the Insolvency Act 1986, makes any voluntary arrangement with its creditors or becomes subject to an administration order or serves notice of administration, or has a receiver, manager or administrative receiver appointed over its assets or (being an individual) shall become bankrupt or (being a company) shall have a winding-up order made against it or shall go into liquidation (except for the purposes of a solvent amalgamation or reconstruction and in such manner that the resulting company effectively agrees to be bound by or assume the obligations imposed on the predecessor company under the Contract);
a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within ten (10) Working Days;
any event occurs or a proceedings are taken with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 2(b) to clause 7.2(d) (inclusive); or
the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business.

Without limiting its other rights or remedies, the Supplier may suspend provision of the Services under the Contract if the Customer becomes subject to any of the events listed in clause 2(b) to 7.2(f), or the Supplier reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.

CONSEQUENCES OF TERMINATION
- On termination of the Contract for any reason:

the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt;
in the event of termination prior to the expiry of a Minimum Term or current Extended Term, other than by the Customer pursuant to clause 2, the Customer shall remain liable for and shall immediately pay to the Supplier all Charges that would have been payable but for such termination;
the Customer shall return any Equipment which has not been fully paid for. If the Customer fails to do so, then the Supplier may enter the Customer’s premises and take possession of the Equipment. Until it has been returned, the Customer shall be solely responsible for the safe keeping of such Equipment and will not use it for any purpose not connected with the Contract;
the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination of the Contract shall be unaffected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
clauses which expressly or by implication survive termination shall continue in full force and effect, including but not limited to clauses 1, 4, 5, 6, 8, and 10.

FORCE MAJEURE
- For the purposes of the Contract, a “Force Majeure Event” means an event beyond the reasonable control of the Supplier including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or otherwise), failure of a utility service (including without limitation street cabling, network or infrastructure failure or fault), failure of a transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers, subcontractors or utility suppliers.

The Supplier shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event. If the Force Majeure Event prevents the Supplier from providing any of the Services for more than twenty (20) Working Days, the Supplier shall, without limiting its other rights or remedies, have the right to terminate the applicable Contract immediately by giving written notice to the Customer.

GENERAL
- The Customer may not assign or transfer your rights or obligations under the Contract either in whole or in part without the Supplier’s prior written consent, which shall not be unreasonably withheld.

any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier, or e-mail;
a notice or other communication shall be deemed to have been received:
1. if delivered personally, when left at the address referred to in clause 11.2(a);
2. if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Working Day after posting;
3. if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or
4. if sent by e-mail, one Working Day after transmission;
the provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.

If any provision (or part of a provision) of the Contract is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.

Independent parties. Nothing in the Contract creates a partnership, agency, fiduciary or employment relationship between the parties. No person or entity not a party to the Contract shall have any rights to enforce its terms.

Failure to enforce rights and remedies. No failure or delay by a party to exercise any right or remedy provided under the Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy. Except as expressly provided in the Agreement, the rights and remedies provided hereunder are in addition to, and not exclusive of, any rights or remedies provided by law.

The Supplier reserves the right to make changes to these Conditions from time to time and shall provide the Customer with written notification of the same. No other changes shall be binding unless made in writing and signed by or on behalf of the Supplier.

Dispute resolution. The Customer must notify any complaints or disputes to the Supplier in accordance with its Complaints and Dispute Resolution Procedure (a copy of which is available on request). The Supplier shall use reasonable endeavours to resolve any complaint or dispute.

Governing law and jurisdiction. The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims).

APPENDIX 1 – COMMUNICATION SERVICES TERMS

These Service Specific Terms (“Communication Services Terms”) govern the supply of the Data Services and Fixed Network Services.

DEFINITIONS
- In these Communication Services Terms, the following definitions apply:

Carrier: the relevant third-party telecommunications operator or network service provider for the supply of the Data Services and/or Fixed Network Services.

Connection Date: means the date when the Carrier commences the provisioning of Data Services to the Customer on behalf of the Supplier.

Extended Term: in relation to:

Fixed Network Services has the meaning given to it in clause 3; and
Data Services has the meaning given to in clause 3.

Handover Date: means the date on which the applicable Services are available for use by the Customer with the Supplier as the provider of those Services, in place of the Customer’s previous provider.

Horizon Sub Licence: a sub licence granted by the Supplier to the Customer for a hosted product known as “Horizon” for use in connection with Fixed Network Services.

Minimum Term: the minimum contract term applicable to the Data Services and Fixed Network Services which, unless otherwise specified in the Order, shall be the period of twelve (12) months from the Service Commencement Date.

OFCOM: the Office of Communications or any equivalent successor body.

Service Commencement Date: means in the case of:

Maintenance Services: The Installation Date (as defined in Appendix 2), where applicable, or where the Supplier has not contracted to install Equipment, the date specified as the commencement date for the Maintenance Services;
Fixed Network Services: The Handover Date in respect of those Fixed Network Services; and
Data Services: The Handover Date in respect of those Data Services.

Small Business Customer: a Customer that is not a communications provider and that has 10 or fewer individuals working for that Customer (whether as employees, volunteers or otherwise).

Tariff: The standard tariff as set out at www.wedoyourcomms.co.uk for Fixed Network Services and the Data Services as per the Order and as amended or notified to the Customer from time to time.

VOIP: Voice Over Internet Protocol being the use of the internet as the transmission medium for telephone calls by digital means (rather than the traditional telephone system based on copper wires carrying analogue data).

Customer Transfer Preference Policy: the policy as set out at www.wedoyourcomms.co.uk as varied from time to time.

TERMS APPLICABLE TO FIXED NETWORK SERVICES
- Subject to clause 2, the Fixed Network Services shall commence on the Service Commencement Date and shall continue for the Minimum Term.

If the Service Commencement Date for the provision of Fixed Network Services has not occurred as at the first anniversary of the Contract Date for the Fixed Network Services then the Contract in respect thereof shall be deemed terminate unless otherwise agreed by the parties. The rights of the parties that have accrued prior to such termination shall not be affected by such termination.

Subject to clause 4, the Fixed Network Services shall automatically extend for successive periods of twelve (12) calendar months (each an Extended Term) following the Minimum Term and each Extended Term. A party may give notice in writing to the other party no later than ninety (90) days before the end of the Minimum Term or the relevant Extended Term to terminate the Fixed Network Services Contract at the end of the Minimum Term or the relevant Extended Term, as the case may be.

Where the Customer is a Small Business Customer, the Customer may terminate the Fixed Network Services by giving not less than ninety (90) days’ notice in writing to the Supplier, such notice to expire no earlier than the end of the Minimum Term.

The provision of the Fixed Network Services by the Supplier is conditional on:

the Supplier (or its Third Party Provider) carrying out such surveys as it deems necessary to satisfy itself that that it is possible to supply the Fixed Network Services;
the installation of the lines over which the Fixed Network Services are to be provided and such lines being fully operational; and
the Customer providing to the Supplier to its satisfaction accurate information and data to enable the Supplier to calculate the Charges and to carry out a site survey.

The Customer agrees that the Supplier cannot guarantee that the Fixed Network Services will work without interruption and will be fault or error free.

The Customer shall notify the Supplier of any interruption, fault or error with the Fixed Network Services in accordance with the Supplier’s Fault Handling Policy (available at www.wedoyourcomms.co.uk) as amended from time to time. The Supplier shall use reasonable endeavours to correct or cure any interruption, fault or error with the Fixed Network Services in accordance with the Supplier’ Fault Handling Policy, save that time shall not be of the essence.

The Supplier shall not be liable to the Customer in contract, tort (including negligence) or otherwise, for any acts or omissions of Carriers that may (wholly or partially) cause, impact or result in any interruption, fault error with or withdrawal of (temporarily or permanently) the Fixed Network Services.

All and any telephone numbers allocated to the Customer in connection with the Fixed Network Services may be withdrawn by OFCOM and accordingly the Supplier does not warrant or represent that such telephone numbers can be provided to the Customer. The Customer acknowledges and agrees that any telephone numbers allocated to it are allocated on the basis of a licence and the Customer agrees not to sell or transfer any telephone number provided to it (except where the Customer has a right to port that telephone number).

In relation to the use of the Fixed Network Services the Customer agrees:

to ensure that the Fixed Network Services are not used to make offensive, indecent, menacing, nuisance or hoax calls;
not to use the Fixed Network Services in any way that may, in the Supplier’s reasonable opinion, damage its reputation;
not to contravene any laws, regulations or codes of conduct that may, from time to time, be applicable to the use or supply of the Fixed Network Services;
to implement and maintain appropriate security and control over its networks, equipment and business to prevent fraud and to prevent calls being generated by third parties;
to maintain adequately all equipment utilised in connection with the Fixed Network Services and ensure its compatibility in terms of technical specification;
not to use nor permit the Fixed Network Services to be used in any way that would constitute or contribute to the commission of any crime, tort, fraud or other unlawful activity;
not to allow any unauthorised use of the Fixed Network Services and to take all reasonable security measures to prevent such use;
not to sell or resell the Fixed Network Services in whole or in part;
not to misuse the Fixed Network Services in any way, including without limitation causing the volume of calls made to the telephone numbers allocated to the Customer to significantly exceed that which can be answered by the Customer where this would cause congestion to a network;
that the Supplier may publish details of the Customer’s name, address and telephone number(s) in the Directory Enquiries Service, unless the Customer expressly confirms to the Supplier in writing that it would like a special entry to be made, for which the Supplier may make an additional charge;
that to the extent the Fixed Network Services contain VOIP services, clause 11 shall also apply save that references in that clause to Data Services shall be deemed to be references to Fixed Network Services; and
in order to protect the Customer against unauthorised transfer of Fixed Network Services, in the event that the Customer fails to contact the Supplier not less than 48 hours prior to any transfer date in accordance with the Supplier’s Customer Transfer Preference Policy, the Supplier may cancel any order made with a third-party supplier.

The Supplier may invoice and the Customer shall pay additional reasonable costs and expenses if the Customer supplies inaccurate or misleading information to the Supplier or if the results of any survey reveal additional construction work is required for the supply of the Fixed Network Services.

Where the transfer of lines and services of another supplier occurs, those existing services will automatically transfer to the Supplier and will be charged for by the Supplier in accordance with the Tariff from the Handover Date.

The Customer agrees that it is liable for charges (including without limitation any early termination charges) made by third parties, including any Third Party Provider, previous supplier and/or network, for any transfer of lines and services or otherwise, unless it is clearly stated on the Order that the Supplier will pay for such charges.

The Customer accepts that the Supplier will, prior to the Handover Date, have spent a significant amount of time and incurred expense in preparation for the provision of the Fixed Network Services to the Customer. Accordingly, if the Customer terminates the Contract for Fixed Network Services prior to the Handover Date, it shall pay to the Supplier an early termination fee of £500 plus VAT. This clause shall not apply where the Customer is a Small Business Customer.

Save where the Customer has contracted for the supply of line rental only, the Customer agrees that it shall not use any lines designated for the supply of the Fixed Network Services for calls charged for by another supplier. If in breach of this clause the Customer does use such lines for the carriage of calls charged for by another supplier, the Customer shall be deemed to be in breach of the Contract and at the Supplier’s option, and without prejudice to its other rights and remedies, it may treat the Contract as having been terminated early in breach of contract and clause 16 shall apply.

Where the Customer purports, in breach of these Conditions, to terminate the Contract for Fixed Network Services prior to the expiry of the Minimum Term or Extended Term (as the case may be), the Customer shall be liable to pay to the Supplier an amount calculated in the following manner:

(by reference to line rental) the sum that the Customer would have paid to the Supplier for the rental of the lines for the remainder of the Minimum Term or Extended Term (as applicable), calculated at the rate applicable at the time of termination; and
(by reference to call charges) the greater of (i) the average of the monthly charges for calls incurred by the Customer for the three whole months prior to the date of termination, multiplied by the remainder of the Minimum Term or Extended Term (as applicable); or (ii) a fixed sum of £500.

The Customer agrees not to use in connection with the Fixed Network Service any telephone number that the Customer does not have the legitimate right to use. In this regard the Customer shall not “present out” any telephone number that it does not have the right to use, such as a telephone number of a competitor.

Where the Supplier grants to the Customer a Horizon Sub Licence, the licence shall automatically terminate on cessation of the Fixed Network Services in respect of which the Horizon Sub Licence was granted.

Where the Supplier grants to the Customer an “Away From My Desk” sub-licence, the licence shall automatically terminate on the earlier of (i) 18 months from the grant of the sub-licence; or (ii) the cessation of the Fixed Network Services in respect of which the sub-licence was granted.

TERMS APPLICABLE TO DATA SERVICES
- Subject to clause 2, the supply of the Data Services shall commence on the Service Commencement Date and shall continue for the Minimum Term.

If the Service Commencement Date for the provision of Data Services has not occurred prior to the first anniversary of the Contract Date for the Data Services then the Contract in respect thereof shall be deemed to have terminated. The Supplier may, by giving written notice to the Customer, extend the period referred to in this clause by up to six (6) months if the cause is outside of the control of the Supplier. Further, the period may be extended in by such period as the Supplier and the Customer agree. The rights of the parties that have accrued prior to such termination shall not be affected by such termination.

Subject to clause 4, the Data Services shall automatically extend for successive periods of twelve (12) calendar months (each an Extended Term) from the end of the Minimum Term and each Extended Term. Either party may give notice in writing to the other party no later than ninety (90) days before the end of the Minimum Term or the relevant Extended Term, to terminate the Data Services at the end of the Minimum Term or the relevant Extended Term, as the case may be.

Where the Customer is a Small Business Customer, the Customer may terminate the Data Services by giving not less than ninety (90) days’ notice in writing to the Supplier, such notice to expire no earlier than the end of the Minimum Term.

The provision of any Data Services by the Supplier is conditional on:

the Supplier carrying out such surveys as it considers necessary to satisfy itself that that it is feasible for it to supply the Data Services and the Supplier being satisfied with the results of such surveys;
the Supplier not being prevented by circumstances and factors outside of its control from being able to supply the Data Services. Examples of such circumstance and factors include (without limit) the infrastructure not being able to support the Data Services, the Customer not obtaining the necessary permission from third parties such as a landlord to install the necessary infrastructure, or a public body such as a local authority or highways authority withholding consent to the installation of the infrastructure where such consent is required;
the installation of the lines over which the Data Services are to be provided and such lines being fully operational; and
the Customer providing to the Supplier to its satisfaction accurate information and data to enable the Supplier to calculate the Charges and to carry out a site survey.

The Customer agrees that the Supplier cannot guarantee that the Data Services will work without interruption and will be fault or error free.

The Customer shall notify the Supplier of any interruption, fault or error with the Data Services in accordance with the Supplier’s Fault Handling Policy (available at wedoyourcomms.co.uk) as amended from time to time. The Supplier shall use reasonable endeavours to correct or cure any interruption, fault or error with the Data Services in accordance with the Supplier’s Fault Handling Policy, save that time shall not be of the essence.

The Supplier shall not be liable to the Customer in contract, tort (including negligence) or otherwise for any acts or omissions of third-party suppliers that may (wholly or partially) cause, impact or result in any interruption, fault or error with, or withdrawal of (temporarily or permanently), the Data Services.

In relation to the use of the Data Services the Customer agrees:

to comply with the obligations in clauses 10 as if references therein to Fixed Network Services were references to Data Services;
not to misuse the Data Services in any way, including sending or receiving data in such a manner or volume so as to exceed agreed usage limits or so as to adversely affect the network, the Supplier or its other customers;
that the speed of any Data Services or connection depends on a number of factors beyond the Supplier’s control (including external factors and physical factors such as local availability, the distance from the exchange and peak traffic volume) and that the Supplier does not warrant or represent that the Customer’s connection(s) will produce the maximum advertised speed;
that except where stated otherwise in the Order, the Data Services do not include the supply by the Supplier of lines, modems and other equipment that might be required by the Customer to utilise the Services nor advice on these unless the Supplier is specifically engaged to do so under a separate contract;
to comply with the Supplier’s Acceptable and Fair Use Policy for Broadband (available at www.wedoyourcomms.co.uk) as amended from time to time;
to provide suitable space and environment at the Site for the equipment used in the provision of the Data Services (such as sufficient cooled space on a rack) and to do so in a timely manner. Compliance by the Customer with this clause shall be entirely at the Customers cost;
in respect of any router supplied by or on behalf of the Supplier for a managed internet Ethernet circuit unless otherwise specifically agreed with the Supplier: (i) the router will be provided in a routed IP configuration and its sole purpose is to create an interface for the Customer to plug equipment into and it is not to be used for any other purpose; (ii) the router is the demarcation point at which the responsibility for the provision of Data Services by the Supplier ends; (iii) access to the command interface of the router (which would be required to configure the router) will not be provided to the Customer, nor will other functions that the router may be capable be enabled such as wireless connectivity and firewall functionality; (iv) the Supplier is not responsible for configuration of the router other than to an IP configuration; and (v) the Supplier shall not be responsible for installing firewalls or plugging in the router and if the Customer requires firewalls the Customer shall be responsible for processing their installation;
in respect of a router supplied by or on behalf of the Supplier for an internet broadband service it will be provided in a NAT (Network Address Translation) configuration with DHCP Scope enabled unless otherwise agreed.

The Supplier is committed to ensuring network integrity and capacity and avoid degradation across its customer-base. Accordingly, the Customer agrees that:

if, in the Supplier’s reasonable opinion, the Customer’s use of Data Services is adversely affecting, or may adversely affect, integrity and capacity of networks, the Supplier may take such steps as it deems appropriate to manage the Customer’s access to and use of the Data Services;
the Supplier and/or the Carrier may take such steps as it deems necessary to stop emails that appear to be bulk emails or which appear to be of an unsolicited nature from entering networks and this may including blocking access to or delivery of any such emails; and
the Supplier and/or the Carrier may operate virus screen technology which may result in the deletion or alteration of emails or their attachments.

Where the Data Services involve the supply of VOIP services, the Customer agrees that:

the Customer’s ability to make emergency calls and their priority treatment cannot be guaranteed and any suspension or interruption of the VOIP service may result in the Customer being unable to make emergency calls;
VOIP services are generally not considered to be as reliable as calls made over conventional telephone lines and Customers are advised to maintain the ability to make telephone calls other than as through a VOIP system, such as by maintaining a conventional telephone line, particularly where reliant on calls for emergency purposes; and
VOIP services may sometimes be limited, unavailable or interrupted due to events beyond the Supplier’s control.

Where the Customer wishes to transfer the provision of any lines or services from another supplier to the Supplier, the Customer shall:

provide to the Supplier such accurate information as is required by the Supplier to enable the migration from the current supplier; and
be responsible for all costs, charges and penalties that may arise as a result of or in connection with such transfer.

The Customer accepts that it is liable for all cancellation or termination payments and charges (including without limitation any early termination charges) levied by a previous supplier for the transfer of the provision of services and lines to the Supplier unless it is stated on the Order that the Supplier will be responsible for the payment of such Charges.

The Customer accepts that the Supplier will, prior to the Connection Date, have spent a significant amount of time and incurred expense in preparation for the provision of the Data Services to the Customer. Accordingly, if the Customer terminates the Contract prior to the Connection Date, it shall pay to the Supplier £500 plus VAT. This clause shall not apply where the Customer is a Small Business Customer.

Where the Customer purports, in breach of these Conditions, to terminate the Contract for Data Services prior to the expiry of the Minimum Term or Extended Term (as the case may be), including any termination after the Connection Date but before the Handover Date, the Customer shall be liable to pay to the Supplier the sum that the Customer would have paid to the Supplier as Charges for the Data Services for the remainder of the Minimum Term or Extended Term (as applicable). Where such termination occurs after the Connection Date but before the Service Commencement Date, the sum due shall be the rate that would have applied at the Service Commencement Date had the Contract not been terminated.

ADDITIONAL TERMS RELATING TO CHARGES FOR DATA SERVICES AND FIXED NETWORK SERVICES
- The Charges for the Fixed Network Services and the Data Services shall be as detailed in the Order and as otherwise determined in accordance with the Contract.

Charges for line rental are payable from the Handover Date monthly in advance by direct debit, or such other method as is specified in the Order.

The Customer shall pay for all Charges for calls whether made by the Customer or any third party utilising the Customer’s access to the Services. Subject to clause 9.4, the Supplier shall invoice the Customer monthly in arrears for all call Charges and the Customer shall pay such invoice within 14 days of the date of the relevant invoice by direct debit.

Notwithstanding any other provision, the Supplier reserves the right to invoice the Customer for Charges at any time.

If the Supplier supplies the Customer with any temporary Data Services and/or Fixed Network Services, it may charge the Customer in advance for the whole period during which the temporary services are to be provided.

The Supplier shall have the right to charge a minimum fee for calls of not less than £4.50 per month in the event that the Customer’s call charges do not exceed this sum in a given month.

EQUIPMENT
- Other than Equipment purchased by the Customer, any equipment installed or supplied by the Supplier to the Customer in connection with the Fixed Network Services and/or Data Services shall at all times remain the property of the Supplier. The Customer shall return such equipment to the Supplier immediately on request or cessation of the provision of the Services and the Customer shall be liable for all costs, losses, damages and expenses incurred by the Supplier for the repair, recovery and replacement of such equipment.

TERMINATION
- Where the Customer is a Small Business Customer, the Customer may terminate a Contract for Fixed Network Services or Data Services at any time prior to commencement of the supply of such Services.

APPENDIX 2 – EQUIPMENT SUPPLY, INSTALLATION AND MAINTENANCE SERVICES

These Service Specific Terms apply to the provision of Equipment, Installation Services and Maintenance Services.

INTERPRETATION
- In these Service Specific Terms, the following definitions apply:

Installation Date: the date on which the Equipment is installed.

ADDITONAL TERMS APPLICABLE TO EQUIPMENT, INSTALLATION SERVICES AND MAINTENANCE SERVICES
- The Supplier shall use reasonable endeavours to deliver the Equipment and supply the Installation Services with reasonable care and skill in accordance with the estimated period for delivery and installation (if any) specified in the Order. Installation within such period is not guaranteed and time shall not be of the essence for Delivery or Installation.

Equipment Delivery, title and risk

Delivery of Equipment shall be deemed to take place when such Equipment arrives at the Site (prior to unloading or unpacking) (Delivery) (and Delivered shall be construed accordingly). In relation to Delivery of Equipment:

the Customer shall be responsible for checking that all details specified in the Order are correct;
if the Customer fails to take Delivery of any Equipment within ten (10) Working Days of the Supplier notifying the Customer that the Equipment is capable of being delivered, the Equipment shall be deemed to have been Delivered in accordance with the Contract and the Equipment shall be at the risk of the Customer;
if any Equipment is to be Delivered in instalments, any delay in the Delivery of one instalment shall not entitle the Customer to reject the other instalments or to terminate the Contract; and
the risk in any Equipment shall pass to the Customer on Delivery (or deemed Delivery in accordance with clause 2.2(b)) and the Customer shall be responsible for insuring the Equipment from that time.

In connection with Equipment purchased rather than leased, title shall not pass to the Customer until such time as the Customer has paid to the Supplier all Charges due for the Equipment and the Installation Services. Unless and until title to the Equipment passes to the Customer (if at all), the Customer shall:

not remove, deface or obscure any identifying mark on or relating to the Equipment;
keep the Equipment in satisfactory condition and insured against all risks for its full price from the date of Delivery or deemed Delivery;
not lease, charge or otherwise encumber the Equipment; and
not remove the Equipment from the Site without the Supplier’s prior written consent.

If the Equipment is leased to the Customer, the Customer accepts that title to the same remains with the Supplier or its Third-Party Provider, and the Customer shall:

keep the Equipment in satisfactory condition and insured against all risks for its full price from the date of Delivery or deemed Delivery;
not sub-lease, charge or otherwise encumber the Equipment;
not remove the Equipment from the Site without the Supplier’s prior written consent;
notify the Supplier of any loss of or damage to the Equipment and account to the Supplier for the same;
return the Equipment to the Supplier or its nominated return address at the Customer’s cost at the end of the lease period; and
permit the Supplier or its agents to enter any premises of the Customer or of any third party where the Equipment is located in order to access, inspect and recover it.

Maintenance Services

Maintenance Services shall commence on the Service Commencement Date and, unless otherwise specified in the Order, shall continue for a period of twelve (12) months (Minimum Term) and thereafter shall automatically extend for successive twelve (12) month periods (each an Extended Term), unless and until either party gives notice in writing to the other party no later than ninety (90) days before the end of the Minimum Term or the relevant Extended Term, to terminate the Maintenance Services at the end of the Minimum Term or the relevant Extended Term, as the case may be.

The Maintenance Services shall only be supplied by the Supplier in relation to the Equipment and to any other equipment agreed by the Supplier in writing from time to time. Unless agreed otherwise in writing, the Supplier shall supply the Maintenance Services in accordance with its standard service levels and procedures (a copy of which is available at wedoyourcomms.co.uk), as amended from time to time.

The Maintenance Services shall not include or be deemed to include repair or maintenance relating to:

Equipment that is faulty or has failed due (in whole or in part) to or caused by: (i) fair wear and tear; (ii) the Customer’s (including its agents or workers) acts, operating errors, omissions or default; (iii) failure in air-conditioning or fluctuations in electrical power; (iv) any failure of equipment or software attached to or integrated to the Equipment where such equipment or software was not supplied by the Supplier; (v) vandalism, fire, theft, water or lightening; (vi) any defect or error in software loaded on to the Equipment; (vii) any defect or fault in connection with services supplied to the Supplier by any Carrier; (viii) failure by the Customer (including its agents or workers) to adequately maintain any Equipment or operate it in accordance with the manufacturer’s specifications, guidelines or recommendations; (ix) any attempt by the Customer or any third party other than the Supplier or its duly authorised agents to repair, reconfigure, re-program or otherwise alter the Equipment or any equipment or cabling attached to it;
ancillary items, including but not limited to, answer-phones, analogue and digital phones or devices, call loggers, payphones, computers, servers, uninterruptible power supplies, batteries, fax machines, public address systems, printers, cabinets, external music on hold sources, any cabling and/or consumables unless otherwise agreed in writing;
the maintenance or repair of any extension wiring, any Equipment not at the Site, or of anything other than the Equipment; or
the reprogramming of the Equipment by any party other than the Supplier, including to provide improved or modified services or facilities.

If the Supplier carries out Maintenance Services to any Equipment which has, in its reasonable opinion failed or become faulty due (wholly or partially) to any of the circumstances described in clause 7, the Supplier shall be entitled to charge additional fees for such Maintenance Services.

In carrying out the Maintenance Services the Supplier shall not be liable for the loss of any data or information stored on the Equipment or any other equipment that may be affected by the carrying out of the Maintenance Services and the Customer shall ensure that appropriate backups of all data and information are maintained.

In rectifying any fault to Equipment it may be necessary for the Supplier to reset the Equipment’s software. In such cases, the Supplier shall not be responsible for resetting or reloading equipment programming and user profiles.

The Maintenance Services are limited to the provision and repair of the Equipment by the Supplier on a like for like basis, which may include the Supplier supplying reconditioned parts for Equipment and/or supplying reconditioned Equipment. Any Equipment that is removed or replaced and any parts that are removed or installed in Equipment in the carrying out of the Maintenance Services shall become or shall remain (as the case may be) the property of the Supplier.

The Supplier shall not be liable for any delay in the performance of the Maintenance Services where such delay is attributable to no or poor or delayed availability of spare parts for any item of Equipment.

CHARGES
- Except as otherwise specified in the Order, Charges for Equipment and Installation Services shall be payable on Delivery.

If the Customer purports to terminate the Maintenance Services (in whole or in part) in breach of these Conditions before the expiry of any applicable Minimum Term or Extended Term, the Customer shall pay to the Supplier all Charges that would have accrued during the period from the date of termination to the end of the Minimum Term or Extended Term (as the case may be).

APPENDIX 3 – IT SUPPORT SERVICES

These Service Specific Terms apply to the provision of the IT Support Services.

INTERPRETATION
- In these Service Specific Terms, the following definitions apply:

Assets: means the Customer assets in relation to which the IT Support Services are provided, as specified in a ‘schedule of assets’ included within the Order or otherwise being those assets that the Supplier agrees to support from time to time.

Break/Fix Support: means the correction, repair or provision of a workaround in relation to any loss or degradation of the performance of an Asset (“Defect”).

Business Hours: means the normal business hours during which the IT Support Services are provided, being 8:30 to 17:30 on a Working Day.

Helpdesk: means the Supplier’s helpdesk for IT Support, which may be contacted via [email protected] and 0117 9118 808.

Out of Scope: means any Defect the cause of which is outside of the scope of the IT Support Services, including those causes indicated in clause 4 of these Service Specific Terms.

Routine Contract Support: means the provision of routine IT Support Services on a contract subscription basis, which may include routine monitoring of the Assets and the implementation of updates, patches, and fixes as and when applicable.

IT SUPPORT SERVICES
- Where the IT Support Services include Break/Fix Support, the Supplier shall provide the Break/Fix Support in relation to the Assets, subject to the Customer logging any Defect via the Helpdesk and excluding any Defect that is identified as being Out of Scope.

The Customer shall promptly report any Defect via the Helpdesk and shall provide all information reasonably required by the Supplier for the provision of the Break/Fix Support, including such information as is necessary to replicate and diagnose the cause of the Defect.

The Supplier shall endeavour to provide the Break/Fix Support promptly and so as to minimise the impact of any Defect but does not guarantee the time for performance of the Break/Fix Support or that it can correct each and every Defect. In particular, some Defects may be caused by manufacturing defects, the end of life of an Asset, or something which only a manufacturer of the Asset could effectively resolve, and the Supplier shall not be liable for the same.

Where the IT Support Services include Routine Contract Support, the Supplier shall provide such Routine Contract Support as specified in the Order or otherwise as reasonably determined by the Supplier from time to time.

Where an Asset incorporates software components, the Supplier shall only be responsible for the operation of that software on the specific hardware Assets covered by the IT Support Services.

CUSTOMER OBLIGATIONS
- In connection with the IT Support Services, the Customer undertakes that it shall:

permit the Supplier and its representatives to access the Assets and all associated premises, systems, software, utilities and facilities, including access in person and remotely, as reasonably required by the Supplier;
permit the Supplier to remove equipment from its premises if necessary;
permit the Supplier to install and utilise such software and tools as are reasonably required by the Supplier, including for monitoring, remote diagnostic and remote access purposes;
be responsible for its possession and use of the Assets and ensure that its users access and use the same in accordance with applicable manufacturer instructions and operating parameters; and
not allow any party other than the Supplier to maintain, repair, modify or interact with the Assets without the Supplier’s prior written approval.

OUT OF SCOPE
- Unless otherwise agreed in writing, the following shall be deemed Out of Scope and are excluded from the Supplier’s obligation to provide IT Support Services:

any pre-existing Defects as at the Commencement Date, including any discovered during any initial discovery work conducted by the Supplier;
any equipment, software, components or materials not specified as being an Asset;
performance or maintenance of telecommunications services provided by any third party;
any damage, defects, failures or other issues arising from the Customer’s (or its employees, workers, agents or contractors) negligence or wilful misconduct;
any issues arising from the modification, adaptation, repair or replacement of any equipment or components other than those performed by the Supplier or with the Supplier’s approval;
any issues caused by use of any part of the Assets other than in accordance with the applicable specifications, user guides, manuals and operating instructions;
any breach by the Customer of its obligations hereunder;
failure or fluctuation of electrical supplies, inadequate cooling, fire, flood, accidents or other natural disasters or other force majeure events;
the failure by the Customer to implement or install any recommended repair, update, patch or upgrade;
the failure by the Customer to repair or replace any defective equipment or systems in accordance with the Supplier’s reasonable recommendations;
the failure by the Customer to follow and implement any other reasonable recommendation made by the Supplier
where no fault is found following reasonable investigation, including requests to the Helpdesk made without good cause; and/or
any third-party support, incident, repair or replacement fees of any kind.

The Supplier may, in its sole discretion, agree to provide IT Support Services in relation to an Out of Scope Defect, subject to the Customer agreeing to pay the Supplier’s costs for doing so, based on the Supplier’s then current standard rate(s).

EXCLUSIONS AND DISCLAIMERS
- The IT Support Services and Charges payable do not include the supply or cost of any components, consumables or replacement items and/or the installation costs of any new, substitute or additional equipment or components. If applicable, the Supplier shall quote for the same and the supply of the same shall be payable separately.

The Supplier shall not be responsible to the Customer or any third party for any losses, claims, damages or liabilities of any kind arising from a Defect, including the unavailability of the Assets or any Customer systems or services, unless and to the extent that the same is demonstrably caused by the Supplier’s own negligence in performing the IT Support Services.

The Routine Contract Support does not act as a guarantee that the Customer’s Assets and systems shall perform without interruption or error. The Customer remains responsible for its own security and device management, including that any security measures are implemented, enforced and appropriate to meet the Customer’s requirements. Except in the case caused by the Supplier’s own wilful default, the Supplier shall not be liable for any security breach or incidents that occur in relation to the Assets or Customer’s systems and facilities or for the integrity and security thereof.

APPENDIX 4 – MARKETING SERVICES

These Service Specific Terms apply to the provision of the Marketing Services.

INTERPRETATION
- In these Service Specific Terms, the following definitions apply:

Advertising Regulations: means any present or future applicable code of practice, adjudication, decision, guideline, direction or rile of any Advertising Regulator, including any applicable modification, extension or replacement thereof in force from time to time.

Advertising Regulator: means the Office of Communications (“Ofcom”), the Broadcast Committee of Advertising Practice (“BCAP”), the Committee of Advertising Practice (“CAP”), the Advertising Standards Authority (“ASA”), the ASA (Broadcast) and any other statutory or regulatory body relevant to the Services to be provided under this Contract.

TERMS APPLICABLE TO MARKETING SERVICES
- The Marketing Services shall be provided so as to comply with the Advertising Regulations. The Customer undertakes that it shall comply with the Advertising Regulations in connection with the use and exploitation of the Marketing Services and any deliverables and outputs arising therefrom.

The Supplier reserves the right to make any changes to the Marketing Services necessary to comply with any changes to the Advertising Regulations or any other applicable laws and regulations from time to time. The Supplier shall notify the Customer of any such change.

The parties will co-operate with each other in ensuring that suitable objective factual product and other information is available as required to satisfy the requirements of any Advertising Regulations or other applicable laws. The Customer agrees to inform the Supplier without delay if the Customer considers that any draft deliverable submitted by the Supplier for approval is false or misleading or in any way contrary to law, including Advertising Regulations.

The Marketing Services shall, unless otherwise specified in the Order, continue for a period of twelve (12) months (Minimum Term) and thereafter shall automatically extend for successive twelve (12) month periods (each an Extended Term), unless and until either party gives notice in writing to the other party no later than ninety (90) days before the end of the Minimum Term or the relevant Extended Term, to terminate the Maintenance Services at the end of the Minimum Term or the relevant Extended Term, as the case may be.

APPROVALS AND AUTHORITY
- Any reference to the Customer’s approval herein shall mean approval by directors or employees of the Customer authorised to approve the Supplier’s work (“Authorised Person”), as further described below.

For the purposes of the Marketing Services and associated deliverables, approval by the Customer shall include (i) email, letter or purchase order bearing the real or digital signature of an Authorised Person; and (ii) oral approval given by an Authorised Person, where time does not permit written approval as per (i) and provided that oral approval is subsequently confirmed in writing.

The Supplier shall obtain the Customer’s approval of its deliverables in draft format including but not limited to copy, layouts, artwork, storyboards and/or scripts, media space and other facilities; and estimates or quotations of the costs of the various items of advertising and other services together with terms of payment. The Customer’s approval of the draft deliverables will constitute authority for the Supplier to purchase production materials and prepare proofs. The Customer’s approval of proofs will be the Supplier’s authority to publish the work.

If there is an error in the deliverables as published or publication is delayed or does not occur as planned, the Supplier will not be liable unless this is caused by its default or neglect.

DATA PROCESSING SCHEDULE

Definitions
- In this Schedule:

Controller	has the meaning given in applicable Data Protection Laws from time to time;
Data Protection Laws	means, as binding on either party or the Services: (i) the GDPR; (ii) the Data Protection Act 2018; (iii) any laws which implement any such laws; and (iv) any laws that replace, extend, re-enact, consolidate or amend any of the foregoing;
Data Subject	has the meaning given in applicable Data Protection Laws from time to time;
GDPR	means the General Data Protection Regulation, Regulation (EU) 2016/679, as retained in the UK by the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019 (SI 2019/419);
Personal Data	has the meaning given in the Data Protection Laws from time to time;
Personal Data Breach	has the meaning given in the Data Protection Laws from time to time;
processing	has the meaning given in the Data Protection Laws from time to time (and related expressions, including process, processed and processes shall be construed accordingly);
Processor	has the meaning given in the Data Protection Laws from time to time;
Protected Data	means Personal Data received from or on behalf of the Customer in connection with the performance of the Supplier’s obligations under the Contract; and
Sub-Processor	means any agent, subcontractor or other third party, including a Third Party Provider, appointed by the Supplier to carry out processing activities on behalf of the Customer in respect of the Protected Data.

Customer’s compliance with data protection laws

The parties agree that the Customer is a Controller and that the Supplier is a Processor for the purposes of processing Protected Data in connection with the provision of the Services pursuant to the Contract. The Customer shall at all times comply with all Data Protection Laws in connection with the processing of Protected Data. The Customer shall ensure all instructions given by it to the Supplier in respect of Protected Data shall at all times be in accordance with Data Protection Laws. Nothing in the Contract relieves the Customer of any responsibilities or liabilities under any Data Protection Laws.

Supplier’s compliance with data protection laws

The Supplier shall process Protected Data in compliance with the obligations placed on it under Data Protection Laws and the terms of Data Processing Schedule.

Instructions
- The Supplier shall only process (and shall ensure Supplier Personnel only process) the Protected Data in accordance with this Schedule and the Contract, except to the extent:

that alternative processing instructions are agreed between the parties in writing; or
otherwise required by applicable law (and shall inform the Customer of that legal requirement before processing, unless applicable law prevents it doing so on important grounds of public interest).
- If the Supplier believes that any instruction received by it from the Customer is likely to infringe the Data Protection Laws it shall promptly inform the Customer and be entitled to cease to provide the relevant Services until the parties have agreed appropriate amended instructions which are not infringing.

Security

Taking into account the state of technical development and the nature of processing, the Supplier shall implement and maintain appropriate technical and organisational measures to protect the Protected Data against accidental, unauthorised or unlawful destruction, loss, alteration, disclosure or access.

Sub-processing and personnel
- The Supplier shall:

have general authorisation to utilise Sub-Processors in connection with the performance of the Services, provided that it shall notify the Customer of any substitute or replacement Sub-Processor and provide it with an opportunity to object to such substitute or replacement;
prior to the relevant Sub-Processor carrying out any processing activities in respect of the Protected Data, appoint each Sub-Processor under a written contract containing materially the same obligations as under this Schedule, that is enforceable by the Supplier;
remain fully liable to the Customer under the Contract for all the acts and omissions of each Sub-Processor as if they were its own; and
ensure that all natural persons authorised by the Supplier or any Sub-Processor to process Protected Data are subject to a binding written contractual obligation to keep the Protected Data confidential.

Assistance
- The Supplier shall (at the Customer’s cost) assist the Customer in ensuring compliance with the Customer’s obligations pursuant to Articles 32 to 36 of the GDPR (and any similar obligations under applicable Data Protection Laws) taking into account the nature of the processing and the information available to the Supplier.
- The Supplier shall (at the Customer’s cost) taking into account the nature of the processing, assist the Customer (by appropriate technical and organisational measures), insofar as this is possible, for the fulfilment of the Customer’s obligations to respond to requests for exercising the Data Subjects’ rights under Chapter III of the GDPR (and any similar obligations under applicable Data Protection Laws) in respect of any Protected Data.

International transfers

The Supplier shall not process and/or transfer, or otherwise directly or indirectly disclose, any Protected Data in or to countries outside the UK or European Economic Area without the prior written authorisation of the Customer.

Audits and processing

The Supplier shall, in accordance with Data Protection Laws, make available to the Customer such information that is in its possession or control as is necessary to demonstrate the Supplier’s compliance with the obligations placed on it under this Schedule and to demonstrate compliance with the obligations on each party imposed by Article 28 of the GDPR (and under any equivalent Data Protection Laws equivalent to that Article 28), and allow for and contribute to audits, including inspections, by the Customer (or another auditor mandated by the Customer) for this purpose (subject to a maximum of one audit request in any 12 month period under this paragraph 9).

Breach

The Supplier shall notify the Customer without undue delay and in writing on becoming aware of any Personal Data Breach in respect of any Protected Data.

Deletion/return

On the end of the provision of the Services relating to the processing of Protected Data, at the Customer’s cost and the Customer’s option, the Supplier shall either return all of the Protected Data to the Customer or securely dispose of the Protected Data (and thereafter promptly delete all existing copies of it) except to the extent that any applicable law requires the Supplier to store such Protected Data.

Details of Data processing

Processing of the Protected Data by the Supplier under the Contract shall be for the subject-matter, duration, nature and purposes and involve the types of Personal Data and categories of Data Subjects set out in this section.

Subject-matter of processing:

The provision of professional and technical services, including but not limited to telecommunications, IT maintenance and support, marketing and/or hosting services.

Duration of the processing:

The duration of the applicable Services and for such time as the Supplier may be required to hold Protected Data for legal, accounting and/or compliance reasons.

Nature and purpose of the processing:

The collection, recording, organisation, structuring, storage, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, the Protected Data as necessary for the purpose of facilitating the Customer’s proper use of the Services.

Type of Personal Data:

Name, address, email address, telephone number(s), occupation, and associated information distributed and/or stored via the Services.

Categories of Data Subjects:

Employees, users, customers, suppliers, potential customers and suppliers, associated points of contact.

Version Control
Title	Terms of Service – SCITS
Author	Jody Morrow
Date	31^st August 2023
Approving member of staff	Rob Morrow
Classification of Document	Public
Version Number	1

Revision Made	By Whom?	Date	Approved By?	Version
Document Draft Created	Jody Morrow	19^th June 2023	Rob Morrow	0
Document Finalised	Jody Morrow	31^st August 2023	Rob Morrow	1.0

Classification Information
Public	Intended for Public Consumption
Internal	Intended for internal use only
Confidential	Sensitive and Critical Information

Smart Computers IT Support Terms Of Service

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