(A) The Supplier is in the business of providing a range of IT support, hosting and consultancy goods and services.
(B) The Customer wishes to obtain and the Supplier wishes to provide the goods and/or services on the terms and conditions set out in this contract.
The following definitions and rules of interpretation apply in these Conditions.
Additional Services: any Emergency Maintenance performed by the Supplier under this agreement.
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Conditions: these terms and conditions as amended from time to time.
Commencement Date: the date that the Services will be provided from which is to be agreed between the Supplier and Customer.
Contract: the contract between the Supplier and the Customer for the supply of Goods and/or Services in accordance with these Conditions.
Contract Term: the contractual term for the provision of Goods and/or Services specified in the Order to start on the Commencement Date.
Corrective Maintenance: means:
(a) making any adjustments to the Maintained Equipment; and
(b) replacing any parts or components of the Maintained Equipment, required to restore the Maintained Equipment to Good Working Order, in accordance Schedule 4
Customer: the person or firm who purchases the Goods and/or Services from the Supplier.
Customer-site Equipment: any equipment located or to be located on a Customer Site but controlled or to be controlled exclusively by the Supplier as part of the Managed Services.
Customer Software: has the meaning given to that term in the definition of Software.
Data Protection Legislation: the UK Data Protection Legislation and (for so long as and to the extent that the law of the European Union has legal effect in the UK) the General Data Protection Regulation ((EU) 2016/679) and any other directly applicable European Union regulation relating to privacy.
Deliverables: the deliverables set out in the Order produced by the Supplier for the Customer.
Emergency Maintenance: in accordance with Schedule 4:
(c) making any adjustments to the Maintained Equipment; and
(c) replacing any parts or components of the Maintained Equipment, required to restore the Maintained Equipment to Good Working Order
Excluded Causes: means:
(a) a defect in the manufacturer's design of the Maintained Equipment;
(b) faulty materials or workmanship in the manufacture of the Maintained Equipment;
(c) use of the Maintained Equipment with computer equipment or materials not supplied or approved in writing by the Supplier;
(d) any maintenance, alteration, modification or adjustment performed by persons other than the Supplier or its employees or agents;
(e) the Customer or a third party moving the Maintained Equipment;
(f) the use of the Maintained Equipment in breach of any of the provisions of the agreement under which the Maintained Equipment was supplied;
(g) a failure, interruption or surge in the electrical power or its related infrastructure connected to the Maintained Equipment;
(h) a failure or malfunction in the air conditioning or other environmental controls required for the normal operation of the Maintained Equipment, or an error or omission in the correct use of that air conditioning or other environmental controls by the Customer; or
(i) the neglect or misuse of the Maintained Equipment.
Excluded Maintenance: any maintenance services required to restore any malfunctioning or failed Maintained Equipment to Good Working Order where the malfunction or failure results from or is caused by any of the Excluded Causes.
Fix Time: the applicable fix times as set out in the Order.
Force Majeure Event: an event or circumstance beyond a party's reasonable control.
Good Industry Practice: in relation to any undertaking and any circumstances, the exercise of skill, diligence, prudence, foresight and judgement and the making of any expenditure that would reasonably be expected from a skilled person engaged in the same type of undertaking under the same or similar circumstances.
Goods: the goods (or any part of them) set out in the Order.
Good Working Order: the Maintained Equipment operates in accordance with the Operating Manuals.
Hardware: all physical telecommunications, networking and computer equipment (including switches, routers, cables, servers, racks, cabinets and peripheral accessories) provided and used by the Supplier to deliver the Managed Services to the Customer as set out in the Order.
Hardware Maintenance Services: Corrective Maintenance and Emergency Maintenance of the Maintained Equipment.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Location: the location of the Maintained Equipment at the Customer's premises as specified in the Order, or any other location as may be agreed by the parties in writing from time to time.
Maintenance: any error corrections, updates and upgrades that the Supplier may provide or perform with respect to the Managed Services, as well as any other support or training services to be provided to the Customer under this agreement.
Maintained Equipment: the equipment specified in the Order including any or all parts of the network, hardware, software as identified in the Order.
Maintenance Release: release of the Software that corrects faults, adds functionality or otherwise amends or upgrades the Software, but which does not constitute a New Version.
Maintenance Events: has the meaning given in Schedule 2
Managed Services: the service described in the Managed Services Specification to be performed by the Supplier in accordance with this agreement.
Managed Services Specification: the specification for the Managed Services as described in the Order.
New Version: any new version of the Software which from time to time is publicly marketed and offered for purchase by the Supplier in the course of its normal business, being a version which contains such significant differences from the previous versions as to be generally accepted in the marketplace as constituting a new product.
Operating Manuals: any operating manuals, specifications and other manufacturer documentation relating to the Maintained Equipment
Order: the purchase order for the supply of Goods and/or Services
Response Time: the applicable response times as set out in the Order
Services: the services, including the Deliverables, Managed Services, Set-up Services and Hardware, supplied by the Supplier to the Customer as set out in the Service Specification.
Service Level Arrangements: the service level arrangements set out in the Order.
Service Specification: the description or specification for the Services as set out in the Order.
Set-up Services: the due diligence, configuration and related work to be performed by the Supplier to set up the Managed Services as specified in the Order.
Site: the premises from which the Customer carries out its business as notified to the Supplier in writing from time to time.
Software: any software used by the Supplier (or any of its sub-contractors) exclusively to provide the Managed Services to the Customer whether owned by a third party (Third Party Software), by the Customer (Customer Software) or by the Supplier (Supplier Software) as listed in the Order.
Supplier: ARC (U.K.) SYSTEMS LIMITED registered in England and Wales with company number 02695504whose registered office is at Spectrum House, 2b Suttons Lane, Hornchurch, Essex, RM12 6RJ.
Supplier Software: has the meaning given to that term in the definition of Software.
Supplier's System: the information and communications technology system to be used by the Supplier (or any of its sub-contractors) in performing the Services, including the Hardware, the Software, the Customer-site Equipment and communications links between the Hardware and the Customer-site Equipment and the Customer's Operating Environment.
Third-Party Additional Terms: the additional terms and conditions relating to Third-Party Software referred to in the Order, including any applicable end-user licence.
Third-Party Software: the third-party software identified in the Order.
UK Data Protection Legislation: any data protection legislation from time to time in force in the UK including the Data Protection Act 1998 or 2018 or any successor legislation.
1.2 Clause, Schedule and Paragraph headings shall not affect the interpretation of this agreement.
1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.4 The Schedules form part of this agreement and shall have effect as if set out in full in the body of this agreement. Any reference to this agreement includes the Schedules.
1.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.6 This agreement shall be binding on, and enure to the benefit of, the parties to this agreement and their respective personal representatives, successors and permitted assigns, and references to any party shall include that party's personal representatives, successors and permitted assigns.
1.7 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
1.8 A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.
1.9 A reference to writing or written includes email.
1.10 Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
1.11 A reference to this agreement or to any other agreement or document referred to in this agreement is a reference of this agreement or such other agreement or document as varied or novated (in each case, other than in breach of the provisions of this agreement) from time to time.
1.12 References to clauses and Schedules are to the clauses and Schedules of this agreement and references to paragraphs are to paragraphs of the relevant Schedule.
1.13 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2. Commencement and duration
2.1 The Order constitutes an offer by the Customer to purchase Goods and/or Services in accordance with these Conditions.
2.2 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.
2.3 The Order shall only be deemed to be accepted when the Supplier issues written acceptance of the Order at which point and on which date the Contract shall come into existence and shall continue for the Contract Term (unless terminated earlier in accordance with clause 13) and any further periods in accordance with clause 2.4.
2.4 The Contract shall continue in accordance with these Conditions for successive periods of 12 months (‘Rollover Contract Term’) until terminated by either the Supplier or the Customer on no more than 90 nor less than 30 days' prior written notice to the other before end of the current Rollover Contract Term.
If the Order indicates any Goods are to be supplied under the Contract then the provisions of Schedule 1 shall apply.
4. Supply of Services
4.1 The Supplier shall supply the Services to the Customer in accordance with the Service Specification in all material respects.
4.2 The Supplier shall use all reasonable endeavours to meet any performance dates for the Services 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.
4.3 The Supplier reserves the right to amend the Service Specification if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.
4.4 The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.
4.5 The Supplier does not warrant that the Customer's use of the Managed Services shall be uninterrupted or error-free.
4.6 The Supplier shall only provide the Services during the service hours specified in the Order or Service Level Arrangements.
4.7 If the Order indicates there will be a Software Licence under the Contract then the provisions of Schedule 3 shall also apply.
4.8 If the Order indicates any there will be Hardware Maintenance Services under the Contract then the provisions of Schedule 4 shall also apply.
5.0 Service provision
5.1 The Supplier shall provide the Services until expiry or termination of this agreement for any reason.
5.2 The Service Level Arrangements shall apply with effect from the start of the first complete month.
5.3 The Customer shall not store, distribute or transmit through the Managed Services any material that:
(a) is unlawful, harmful, threatening, defamatory, obscene, harassing or racially or ethnically offensive;
(b) facilitates illegal activity;
(c) depicts sexually explicit images; and/or
(d) promotes unlawful violence, discrimination based on race, gender, age, disability, sexual orientation, religion, belief or gender reassignment, or any other illegal activity.
5.4 The Customer shall remain responsible for the use of the Managed Services under its control, including any use by third parties (whether fraudulent or invited by the Customer).
5.5 The Customer must take reasonable measures to ensure it does not jeopardise services supplied to third parties on the same shared access infrastructure as notified to the Customer by the Supplier in writing. This includes informing the Supplier promptly in the case of a denial-of-service attack or distributed denial-of-service attack. In the event of any such incident, the Supplier shall work with the Customer to alleviate the situation as quickly as possible. The parties shall discuss and agree appropriate action (including suspending the Managed Services).
5.6 The Customer shall not provide the Managed Services directly or indirectly to third parties.
5.7 The Supplier reserves the right to:
(a) modify the Supplier's System, its network, system configurations or routing configuration; or
(b) modify or replace any Hardware or Software in its network or in equipment used to deliver any Service over its network,
provided that this has no adverse effect on the Supplier's obligations under this agreement and its provision of the Services or the Service Level Arrangements.
5.8 The Services does not include:
(a) any Software or Maintained Equipment not specified or included in the Order including non-serviceable items (such as iPads/Microsoft Surface Pro / routers / switches) and those not available from the manufacturer or deemed beyond economical repair in accordance with clause 5.9; and
(b) any work to accessories, alterations, attachments or any other equipment that is external to the Software or Maintained Equipment not identified within the Order
5.9 The Supplier will notify the Customer in writing if, in its reasonable opinion, the Software or Maintained Equipment (or any part of it) is identified as beyond reasonable repair or spare parts become not readily available, or if faults and/or its condition are such that overhaul or replacement is necessary at which point any obligations of the Supplier to provide Services in respect of such equipment will be suspended.
6. Customer's obligations
6.1 The Customer shall:
(a) ensure that the terms of the Order and any information it provides in the Service Specification and the Goods Specification are complete and accurate;
(b) co-operate with the Supplier in all matters relating to the Services;
(c) provide the Supplier, its employees, agents, consultants and subcontractors, with access (including remote access) to the Customer's premises, office accommodation and other facilities and all documentation, software, materials and services necessary for the provision of the Services maintenance as reasonably required by the Supplier to provide the Services;
(d) provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
(e) prepare the Customer's premises for the supply of the Services;
(f) will immediately notify the Supplier if there is any failure of the Software or Maintained Equipment;
(g) comply with any additional obligations as set out in the Service Specification and the Goods Specification; and
(h) put and keep in place adequate security measures to protect the Maintained Equipment and any other software or data from viruses, harmful code or unauthorised access and the Supplier shall not be responsible for any unauthorised access to the Maintained Equipment by means of hacking, any unauthorised access of the Equipment with intent to commit or facilitate the commission of an offence or any unauthorised modification of Mainlined Equipment by a third party
6.2 If the Supplier's performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
(a) without limiting or affecting any other right or remedy available to it, the Supplier shall have the right to suspend performance of the 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 in each case to the extent the Customer Default prevents or delays the Supplier's performance of any of its obligations;
(b) 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 6.2; and
(c) 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.
7. Charges and payment
7.1 The price for Goods:
(a) shall be the price set out in the Order or, if no price is quoted, the price set out in the Supplier's published price list as at the date of delivery; and
(b) shall be exclusive of all costs and charges of packaging, insurance, transport of the Goods, which shall be invoiced to the Customer.
7.2 The charges for Services shall be the price set out in the Order.
7.3 In respect of Goods, the Supplier shall invoice the Customer as set out in the Order. In respect of Services, the Supplier shall invoice the Customer on as set out in the Order.
7.4 The Customer shall pay each invoice submitted by the Supplier:
(a)within 30 days of the date of the invoice or in accordance with any credit terms agreed by the Supplier and confirmed in writing to the Customer; and
(b) in full and in cleared funds to a bank account nominated in writing by the Supplier, and
time for payment shall be of the essence of the Contract.
7.5 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services or Goods at the same time as payment is due for the supply of the Services or Goods.
7.6 If the Customer fails to make a payment due to the Supplier under the Contract by the due date, then, without limiting the Supplier's remedies under clause 13 (Termination), the Customer shall:
(a) pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 7.6 will accrue each day at 4% a year above the Bank of England's base rate from time to time, but at 4% a year for any period when that base rate is below 0%; and
(b) pay an administration charge of £45.00 for any failed or returned payment.
7.7 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
8. Intellectual property rights
8.1 All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned by the Supplier.
8.2 The Customer grants the Supplier a fully paid-up, non-exclusive, royalty-free non-transferable licence to copy and modify any materials provided by the Customer to the Supplier for the term of the Contract for the purpose of providing the Services to the Customer.
9. Data protection and data processing
9.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 9 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under the Data Protection Legislation. In this clause 9, Applicable Laws means (for so long as and to the extent that they apply to the Provider) the law of the European Union, the law of any member state of the European Union and/or Domestic UK Law; and Domestic UK Law means the UK Data Protection Legislation and any other law that applies in the UK.
9.2 The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the Controller and the Supplier is the Processor.
9.3 Without prejudice to the generality of clause 9.1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to the Provider for the duration and purposes of this agreement.
9.4 Without prejudice to the generality of clause 9.1, the Provider shall, in relation to any Personal Data processed in connection with the performance by the Provider of its obligations under this agreement:
(a) process that Personal Data only on the instructions of the Customer which are set out in the Order unless the Supplier is required by Applicable Laws to otherwise process that Personal Data. Where the Supplier is relying on laws of a member of the European Union or European Union law as the basis for processing Personal Data, the Supplier shall promptly notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Supplier from so notifying the Customer;
(b) ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Customer, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
(c) ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
(d) not transfer any Personal Data outside of the European Economic Area unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled:
(i) the Customer or the Provider has provided appropriate safeguards in relation to the transfer;
(ii) the data subject has enforceable rights and effective legal remedies;
(iii) the Provider complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
(iv) the Provider complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Personal Data;
(e) assist the Customer, at the Customer's cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(f) notify the Customer without undue delay on becoming aware of a Personal Data Breach;
(g) at the written direction, and cost, of the Customer, delete or return Personal Data and copies thereof to the Customer on termination of the agreement unless required by Applicable Law to store the Personal Data; and
(h) maintain records and information to demonstrate its compliance with this clause 9.
9.5 The Customer consents to the Provider appointing third-party processors of Personal Data under this agreement.
10.1 The Customer warrants, represents and undertakes that:
(a) it has the full capacity and authority to enter into and perform this agreement and that this agreement is executed by a duly authorised representative of the Customer;
(b) it has the authority to grant any rights to be granted to the Supplier under this agreement, including the right to provide the Software and Hardware to the Supplier as indicated in this agreement and for the same to be used in the provision of the Services and otherwise in connection with this agreement;
(c) it shall comply with and use the Services in accordance with the terms of this agreement and all applicable laws, and shall not do any act that shall infringe the rights of any third party including the publishing or transmission of any materials contrary to relevant laws;
(d) it owns or has obtained valid licences, consents, permissions and rights to use, and where necessary to license to the Supplier, any materials reasonably necessary for the fulfilment of all its obligations under this agreement, including any third-party licences and consents in respect of any Customer Software; and
(e) the Supplier's possession and use in accordance with this agreement of any materials (including third-party materials supplied by the Customer to the Supplier) shall not cause the Supplier to infringe the rights, including any Intellectual Property Rights, of any third party.