TERMS AND CONDITIONS FOR THE PROVISION OF IT SUPPORT

1 DEFINITIONS

In these conditions the following words shall have the following meanings ascribed to them:

1. "Agreement" means these terms and conditions;
2. “Variation” means any alteration, amendment or addition to this agreement and must be scheduled hereto together with the front sheet signed by the Customer and the Supplier;
3. "Commencement Date" means the date of this Agreement;
4. "Consumable" means items that are consumed during the normal operation of the Equipment including, but not limited to, printer ribbons, inkjet cartridges and laser toner units;
5. “Cover Period” means the hours of cover specified in the Managed Service Agreement;
6. “Customer” means the person, firm or organisation placing an order for service with the Supplier;
7. "Equipment" means the equipment listed in the Managed Service Agreement where referring to customers equipment to be included for the purpose of remedial maintenance or in the Supplier’s quotation, delivery notes or invoices when referring to equipment supplied by the Supplier to the Customer;
8. “Minimum Term of Service” means the period starting with the Commencement Date for which a fixed charge has been agreed as specified on the Managed Service Agreement;
9. "Product" means any service, product, item of equipment, hardware, software, microchip, semiconductor (or other item containing, using or dependent upon any of the foregoing) supplied by the Supplier under this Agreement including, in the case of the Service, any hardware or software provided to the Customer by the Supplier as part of such Service or used by the Supplier as part of such Service;
10. “Remedial Maintenance” means rectification of a hardware failure to restore the Equipment to the configuration and functionality which existed prior to the failure and to the point of passing the Supplier’s diagnostic testing applicable to that Equipment;
11. “Prime Shift” means the hours between 8.00am & 6.00pm Monday to Thursday and 8.00am to 4.00pm on Fridays, excluding English Public Holidays;
12. “Service” means the services as described in Clause 2;
13. “Supplier” means Net Technical Solutions Ltd

2 THE SERVICE

1. The Service shall commence on the Commencement Date and can be broken down into the following categories:
   1. Remedial Maintenance. In this category work is generated by a problem or fault on the network, and is characterised by being unplanned and ad-hoc. In this sense there is an accidental and unexpected change to the systems equilibrium and it is this change that is the impetus for work.
   2. Proactive Support. This includes monitoring and routine upgrades, network changes and enhancements and covers work that results from a need or desire to deliberately change the network in an attempt to improve it, expand it, make it more useable, secure, efficient etc. This category is still clearly IT support but is in contrast to category (i) because the work is generated not in response to, but rather in order to, affect a system change Category (ii) can then be split into two sub-categories:
      1. Work that can be delivered remotely without requiring an onsite visit. This would include day-to-day administration such as remote installation of new, pre-configured PC’s, hardware and software, creating new user accounts or changing account details and work of a less routine nature such as network security audits.
      2. Work that requires an on-site visit such as physical installation of new infrastructure, network cabling etc.
2. The Supplier shall respond to valid service requests during the Prime Shift or such other hours of cover as may be stated in the Managed Service Agreement.
3. The Supplier will make all reasonable endeavours to ensure the visit of an engineer to the Customer’s site within the contracted response time as detailed in the Managed Service Agreement.
4. All parts other than Consumables used in the repair of Equipment shall be provided by the Supplier at the Customers cost. Defective parts removed during the course of a repair remain the property of the Customer unless otherwise agreed with the Supplier. Replacement parts become the property of the Customer.
5. The Supplier shall hold or have access to an adequate stock of standard replacement parts.
6. The Supplier may repair the Equipment away from the installation address. In such circumstances a repair will be completed as soon as is practically possible. If the repair is expected to take longer than five working days, the Supplier may lend the Customer temporary replacement equipment, at no extra cost, until the repair is complete. Temporary loan equipment will be as near compatible as is available at the time of the repair. Loan equipment will be covered by the Service but the Customer shall be liable for the cost of any consumables used as well as loss or damage, however caused, during the loan period.
7. Personnel required under this Agreement will be provided by the Supplier and will be either from its own engineering staff or a competent sub-contractor.

3 CUSTOMER’S RESPONSIBILITIES

1. The Customer shall provide, at no charge to the Supplier, full and free access to the Equipment as necessary to provide the Service. If, on arrival at the Customer’s site, the Supplier's engineer finds that sufficient and proper access to the Equipment is not provided or that the call was not warranted, the Supplier may exercise the right not to perform the Service and to charge the Customer for the Supplier’s costs and expenses reasonably incurred.
2. The Customer shall take all reasonable precautions to protect the health and safety of the Supplier’s personnel whilst on the Customer’s site, including ensuring the presence of a Customer representative in the vicinity of the faulty Equipment during the service visit.
3. The Customer shall be solely responsible for all software but without prejudice to the generality of the foregoing shall also be responsible for ensuring adequate fully serviceable backup copies of its operating system and application software are kept.

4 ADDITIONAL EQUIPMENT

1. With the agreement of both parties, additional equipment may be included in the Equipment schedule from time to time, the charges for such additional equipment being added to the Suppliers billing system on the date we are informed and incorporated in the total charge thereafter. The Supplier may choose to waive this ‘right to charge’ until the contract anniversary date, if reasonable to do so.
2. A revised schedule showing such additions may be provided by the Supplier detailing any price increase.

5 REFURBISHMENT/MAJOR OVERHAUL

If in the opinion of the Supplier, a particular piece of Equipment can no longer be properly maintained due to warranty expiry, wear or deterioration caused by excessive usage or unsuitable operating environment or for any other reason, the Supplier may withdraw the Service in respect of said item of Equipment. If it is deemed that the Equipment concerned can be refurbished, then either the Supplier may refurbish it or its approved agents or sub-contractors provided that the Customer agrees to accept all resulting charges, reasonably and properly incurred.

6 CHARGES AND TERMS OF PAYMENT

1. The charges payable by the Customer in respect of the Service are as specified in writing by the Supplier and agreed by the customer.
2. The charges are payable by Direct Debit, 14 days after receipt of the Supplier’s invoice and prior to the start of the period of cover to which the invoice refers.
3. The charges include all labour and travelling costs, except when support falls into category 2a, section (ii), subsection (b) where the standard contracted project and installation charges apply
4. The Supplier reserves the right to make an appropriate adjustment to the monthly charge or to alter the contracted service levels where Equipment is relocated.
5. The charges are exclusive of Value Added Tax and/or any similar tax that may be imposed from time to time. Such taxes will be applied in accordance with UK legislation in force at the tax point date.
6. If any sum payable under this Agreement becomes overdue, including ad-hoc equipment purchased from the Supplier, the Supplier reserves the right (without prejudice to its other rights) to suspend performance of the Service until the Supplier receives such sum. Charges remain payable in full throughout any such period of suspension. Any non-agreed (only in writing by the Supplier) overdue amount will be subject to interest equivalent to the prevailing rate of Lloyds TSB Bank unauthorised overdraft interest.
7. All equipment provided or sold by the Supplier to the Customer shall remain (without prejudice to its other rights) the property of the Supplier until paid for in full. The Customer shall be responsible for the condition of said equipment.
8. In the event of non payment by the Customer for equipment referred to in 6(h) the Customer must give, if requested, reasonable access to the Supplier for the recovery of this equipment (without prejudice to its other rights) and the Customer shall be liable for any loss in value of this equipment for whatever reason. The Supplier will in this event not be responsible for replacing any previous equipment belonging to the Customer.

7 ALTERATION OF MONTHLY CHARGE

1. The Supplier shall be entitled, on each anniversary of the Commencement Date, or at a pre-arranged date/term as specified on the Managed Service Agreement, to alter its monthly charge for the Service. Such alteration shall not normally exceed the percentage increase averaged over the previous 12 months of the Retail Prices Index published by HM Government.
2. In the event that it proposes an increase greater than that provided for in clause 7(a) above, the Supplier shall give the Customer not less than 30 days notice to that effect. The Customer may, within 30 days of receipt of such notice, appeal in writing against any such alteration which the Customer finds unacceptable. If no acceptable solution has been found following such appeal, the Customer may terminate this Agreement by giving the Supplier 30 days notice in writing, the charges payable during such period of notice being at the previously agreed rate.

8 TERM OF AGREEMENT

After the initial 12 months Minimum Term of Service this Agreement shall continue in effect from year to year thereafter until terminated by either party on 90 days written notice expiring on the anniversary of the contract start date.

9 CONFIDENTIALITY

1. Each party (hereafter called the “Receiving Party”) undertakes to keep and maintain all Confidential Information (which term shall include all information marked or notified to the Receiving Party as confidential or proprietary together with all information which would in the normal course of business be regarded as confidential or proprietary) in the strictest confidence and not to disclose such information to any third party without the prior written consent of the other.
2. Each party shall ensure that its employees and sub-contractors:-
   1. Shall only be given access to Confidential Information received from the other party on a “need to know” basis for the purposes of this Agreement;
   2. Shall have been made aware of the requirements of confidentially set out in this Agreement;
   3. Shall not cause or permit the Confidential Information to be disclosed to any third party.
3. The provisions of this clause 9 shall not prevent either party from disclosing any information where it can demonstrate and document that such information:-
   1. Was in its possession (with full right to disclose) prior to receiving it from the other party; or
   2. Is independently developed or received by it form a third party; or
   3. Is or subsequently comes into the public domain other than by breach of this Agreement.
4. The provisions of this clause 9 shall apply throughout the full course of this Agreement and for five years thereafter.

10 LIABILITY

1. Neither party shall be liable for failure to perform its contractual obligations, other than an obligation to make payment, if such failure results from Act of God, governmental act, fire, explosion, accident, industrial dispute, or any other cause beyond the party’s control.
2. The Supplier indemnifies the Customer in respect of:-
   1. Direct physical damage to the Customer’s property, which is established to be the result of negligence by the Supplier or its servants or agents while on the Customer’s premises for the purpose of this Agreement. In respect of the Equipment, liability is limited to the prompt making good by repair or replacement of any Equipment or part thereof damaged or destroyed as a result of such negligence. The Supplier’s liability for direct damage to property other than the Equipment is limited to £100,000 in respect of any event or series of related events.
   2. Direct physical injury or death of any person resulting from the negligence of the Supplier or its servants or agents.
3. The Customer indemnifies the Supplier in respect of: -
   1. Direct physical damage to the Supplier’s property that can be established to be the result of negligence by the Customer or its servants and agents. The Customer’s liability for direct physical damage is limited to £1,000,000 in respect of any one event or series of related events.
   2. Direct physical injury to, or death of any person resulting from the negligence of the Customer or its servants or agents.
4. In view of the disproportion between the acts or omissions likely to constitute breach or negligence on its part and the consequences for the Customer, the Supplier excludes all liabilities not expressly included in this Agreement, and in particular the Supplier shall have no liability for: -
   1. Destruction of or damage to the Customer’s data. (The Customer must keep a copy of all data from which it shall exclude the Supplier notwithstanding any requests made by its employees or agents);
   2. Any loss of profits, goodwill, revenue, production, anticipated savings, use or contracts or any form of special, indirect or consequential losses whatsoever.
5. In no event shall the Supplier be liable to the Customer for:
   1. Any loss or damage; or
   2. Any claims, demands, actions, costs, expenses, losses or damages arising from or incurred by reason of any claim against the Customer or any third party as a result of the non-Year 2000 Compliance of any Products or Services provided under this Agreement, before, during and after the year 2000.

11 EMPLOYEES

1. Without the prior consent in writing of the other, neither party shall during the term of this Agreement or for six months thereafter solicit, procure, or attempt to procure the employment of any persons employed in the provision of the Service. The Customer will extend this provision to its own customers, where the Supplier is undertaking work on behalf of the Customer for a third party.
2. Notwithstanding any degree of supervision exercised by either party over employees of the other, in no circumstances shall the relationship of employer and employee to be deemed to arise between either party and any employee of the other.

12 WHOLE AGREEMENT

This Agreement represents the entire agreement between the parties. Each party warrants that no representation not recorded in this Agreement has been made which has induced the other to enter into this Agreement.

13 ASSIGNMENT

Neither party shall assign this Agreement without the prior written consent of the other (not to be unreasonably withheld or delayed).

14 NOTICES

Any notice given under this Agreement by either party to the other must be in writing and shall be effected by personal delivery, telex, or registered mail postage and shall in the case of telex be deemed to be received on the same date as it was sent and in the case of postage within 48 hours after the date of posting if posted in the United Kingdom. Notices sent by first class post shall be sent to the address of the party set out on the front sheet or to such other address notified in writing by that party to the other for such purposes.

15 SEVERABILITY

The various provisions of this Agreement are severable and if any provision is held to be invalid or unenforceable by any court of competent jurisdiction such invalidity or unenforceability shall not affect the validity or enforceability of any of the other provisions unless the result goes to the root of this Agreement or radically affects it

16 RIGHT OF TERMINATION

1. If, at any time either party makes default or commits any breach of its obligations under this Agreement and (upon receiving written notification from the other of such default or breach) fails to remedy the default or breach within 14 days, or is involved with any legal proceedings concerning its solvency, or commences liquidation or ceases to threaten to cease trading, or if serious doubt arises as to its solvency, then the other party shall immediately become entitled (without prejudice to its other rights) to terminate this contract forthwith by notice in writing to the other.
2. Upon termination of this Agreement by the Supplier for whatever reason the Supplier shall, without prejudice to its other rights and remedies, be paid:-
   1. the outstanding balance of charges due in respect of any works or services carried out or provided under this Agreement prior to the date of termination and:
   2. the price of equipment or services ordered by the Supplier on behalf of the Customer for which the Supplier has paid or is legally bound to pay.
3. Termination of this Agreement for whatever reason shall not bring to an end any provision hereof which expressly or by implication comes into or continues in force after the date of termination.
4. Notwithstanding anything else contained herein, this Agreement may be terminated by the Supplier in respect of any of the Equipment forthwith on giving notice in writing to the Customer if said item of Equipment shall become obsolete or if the Supplier is no longer able to obtain spare or replacement parts or other necessary support on commercially reasonable terms. In this event a pro rata refund of the pre-paid maintenance charge shall be made.

17 LAW AND JURISDICTION

This Agreement shall be governed by and construed in accordance with English Law and the parties hereto submit to the jurisdiction of the English Courts.