Terms and Conditions Desktop and Server – Technologist

These terms & conditions supersede any existing terms & conditions, and together with either an existing contract detailing: the Duration, Services, Fee’s and Payment, or a document communicated to you separately (hereinafter referred to as The Schedule), form the Agreement that shall govern the relationship between you, the Customer (as defined in The Schedule, hereinafter referred to as The Customer), and Neuways whose registered office is at Neustro House, Bradgate Park View, Chellaston, Derby, DE73 5BE (hereinafter referred to as The Service Provider).

Whereas:

The Service Provider is in the business of the development, supply and operation of Business System Support, Software Development, Reselling of Software and Managed Services.

The Customer is the person, firm or company who purchases Services from The Service Provider in the provision of Services as described in The Schedule.

Now it is agreed as follows:

1. Changes to Terms and Conditions

0.1. “The Service Provider” reserves the right to supersede the below Terms and Conditions as and when necessary to comply with new regulations, legislation or a changing service environment. These changes will be communicated to “The Customer” in writing.

1. Definitions

The following expressions shall have the following meanings, where a term is defined in “The Schedule” but not in these terms and conditions it shall have that meaning. Where a term is defined in both “The Schedule” and these terms and conditions, it shall have the meaning given here:

1.0. “The Schedule” means either an existing contract detailing the Duration, Services, Fee’s and Payments or a document communicated to you separately that contains the specific terms of “The Agreement” with “The Service Provider”

1.1. “The Agreement” means the combination of these Terms and Conditions and “The Schedule”, signed by “The Customer”; and the acceptance of it under condition 3

1.2. “The Services” mean The Services to be provided by “The Service Provider” to “The Customer” as described in the “The Agreement”.

1.3. “The Fees” mean the fees payable for “The Services”, as specified in the “The Agreement”.

1.4. “The Customer Data” means all and any information, data, computer files or other material supplied by “The Customer” to “The Service Provider”; such as passwords, usernames and other information generated and processed by Neuways for the duration of the Contract.

1.5. “The Deliverables” means any software, documentation or other material provided to “The Customer” by “The Service Provider”; all products and materials developed by Neuways in relation to the Project or Services in any media, including, without limitation, computer programs, data, diagrams, reports and specifications (including drafts).

1.6. “Intellectual Property Rights” means any patent, trademark, service mark, registered design, copyright, design right, right to extract or exploit information from a database, database rights, know-how, confidential information or process, any application for any of the above, and any other Intellectual Property Right recognised in any part of the world whether or not presently existing or applied for.

1.7. “Commencement Date” has the meaning set out in “The Agreement”.

1.8. “Services and Support”: The Services to be provided by Neuways under the Contract, which may include one or more of Hosting, Installations, Maintenance, Support, Training and any other services detailed in the quote. “Support”: such as monitoring, hardware and/or software support as defined in “The Agreement”.

1.9. “Third Party Contracts”: the software licences, equipment leases, support and service Agreements specified in “The Agreement”.

2. Duration

2.1. “The Agreement” shall remain in force for a minimum period as defined in “The Schedule” and/or “Start Date” to “End date” and “Duration (Months)” in “The Agreement” and shall continue until terminated in accordance with the provisions of “The Agreement”.

2.2. These conditions shall:

(a). apply to and be incorporated in the Contract; and

(b). prevail over any inconsistent terms or conditions contained in, or referred to in, “The Customer’s” purchase order, confirmation of order, or specification, or implied by law, trade custom, practice or course of dealing.

2.3. “The Agreement” and these terms and conditions constitute the entire Agreement between the parties. “The Customer” acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of Neuways Ltd which is not set out in “The Agreement” or terms and conditions.

3. Services

3.1. If either “The Service Provider” or “The Customer” suggest any change to The Services during the period of “The Agreement” this change must be mutually agreed and recorded in writing before it can take effect

3.2. If “The Customer” should suggest any change to “The Services”, “The Service Provider” will be entitled to charge “The Customer” at standard rates for the investigation and implementation of such a change.

3.3. The Services will be provided on an exclusive basis (for the avoidance of doubt ‘Exclusive Basis’ shall mean that no other vendor or service provider should provide any of The Services laid out in “The Agreement”, or provide services without our explicit consent, whilst this Agreement is in force – this is to ensure that the management of “The Services” and devices is under “The Service Provider’s” control).

3.4 “The Services” that are in scope are as defined in “The Schedule”.

3.5 Unless specifically mentioned any “Services” not defined as ‘in scope’ in “The Schedule” are to be considered out of scope.

3.6 Exclusivity clause: “The Customer” agrees that “The Company” shall be its exclusive supplier of products and services for the purposes of completing “The Customer’s” order.

4. General Data Protection Regulation

4.1. As of the 25^th of May 2018, Regulation (EU) 2016/679 is enforceable in the UK.

This Regulation will apply to all organisations who control or process personal data.

As of the 1^{st of} January 2021, the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) (No.2) Regulations 2019 is in effect.

This instrument ensures that data protection within the UK continues to function correctly following exit from the EU.

In the course of executing the “The Agreement”, “The Service Provider” must make provision to comply with this regulation. For the purposes of compliance with this regulation the below terms shall be given the following definitions:

“Data Controller” has the meaning given to “Data Controller”, or “Controller” as appropriate, in the Data Protection Laws.

“Data Breach” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, Personal Data transmitted, stored or otherwise processed.

“Data Processor” has the meaning given to ‘Data Processor’, or ‘Processor’ as appropriate, in the Data Protection Laws.

“Sub Processor” we have defined as: a processor that is used, as agreed, by the processor (This is not a term defined in the GDPR and should not be construed as such).

“Data Protection Laws” means any and all laws, statutes, enactments, orders or regulations or other similar instruments of general application and any other rules, instruments or provisions in force from time to time relating to the processing of personal data and privacy applicable to the performance of this Agreement, including where applicable the Data Protection Act 1998, the Data Protection Bill, the Regulation of Investigatory Powers Act 2000, the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2426/2003) and the GDPR (Regulation (EU) 2016/679), as amended or superseded.

“GDPR” means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC as updated, superseded or repealed from the time to time.

“Personal Data” has the meaning given in the Data Protection Laws.

Where “The Service Provider” processes personal data on behalf of “The Customer” it is acknowledged that:

• “The Service Provider” is the “Processor”
• “The Customer” is the “Controller”

It may be necessary for “The Service Provider” to engage with “Sub Processors” in the course of carrying out “The Agreement”.

“The Service Provider’s” “Sub Processors” are in Appendix 1.0 and acceptance of this contract is approval for “The Service Provider” to use our “Sub Processors”.

Where required, and in compliance with the “Data Protection Laws”, prior approval will be sought by “The Service Provider”.

4.2. The following table sets out the details of processing as required by Article 28 of the GDPR:

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4.3. Data Subject Access Requests

If a Data Subject Access Request is requested through “The Customer”, it is their responsibility to complete this action. Any assistance required by Neuways will be chargeable at standard rates.

Any request from an employee of “The Customer” will be passed to the primary contact. It will not be constituted as a DSAR as we will only hold any personal data of theirs as part of this contract.

5. Customer Obligations

5.1. “The Customer” will fulfil the obligations detailed in “The Agreement” and cover all reasonable expenses incurred in such actions.

5.2. “The Customer” will provide “The Service Provider” with all information, materials and documentation, resources and facilities reasonably requested by “The Service Provider” to allow “The Service Provider” to supply “The Services“ and “The Deliverables”.

5.3. “The Customer” will ensure that the staff, contractors and other suppliers it employs co-operate fully with “The Service Provider” and no delay is experienced as a result of their actions or omissions.

5.4. “The Customer” will respond promptly to any request for information made by “The Service Provider”.

5.5. “The Customer” will advise any employee of “The Service Provider” who is working on business premises under the control of “The Customer” of the health and safety procedures at those premises. The employees of “The Service Provider” will adhere to the Health and Safety procedures of “The Customer” when working on business premises under the control of “The Customer”.

5.6. “The Customer” shall not allow without the prior written permission of “The Service Provider” for the installation of any software, hardware, agents, scanning software or attachment of any devices to any equipment directly or indirectly managed by “The Service Provider” under this Agreement.

6. Intellectual Property

6.1. Any products, materials or methodologies used by “The Service Provider” in carrying out the obligations contained in “The Agreement” are for the use of “The Customer” only and remain the property of “The Service Provider”. “The Customer” must not divulge the Intellectual Property Rights of “The Service Provider” or use them for any purpose other than accessing The Services in terms of this Agreement.

6.2. Except where specifically provided for in the description of Services to be produced as stated in the signed quote, the Intellectual Property Rights which “The Service Provider” generates or supplies throughout the duration of “The Agreement” belong to “The Service Provider”. “The Customer” will (at “The Service Provider’s” expense) assist “The Service Provider” to enjoy, defend and enforce these rights if necessary for the period of this Agreement.

6.3. Any Intellectual Property Rights belonging to “The Customer” that become known to or require to be used by “The Service Provider” to enable them to perform their obligations in terms of “The Agreement” remain the property of “The Customer” and must not be divulged to a third party by “The Service Provider”.

7. Fees and Payment

7.1. The “Fees” payable for the “Services” are set out in “The Agreement”

7.2. The “Fees” are due within 30 days of the invoice date.

7.3. “The Service Provider” must give thirty (30) days’ notice to “The Customer” for any change to “Fees” as set out in “The Agreement”.

7.4. The “Fees” are exclusive of VAT, which if payable shall be paid by “The Customer”.

7.5. All “Fees” are strictly due for payment within 30 (thirty) days from the invoice date.

7.6. “The Service Provider” reserves the right to charge interest on all late payments at a rate of 3% per annum above the base lending rate of Nat West Bank Ltd.

7.7. “The Service Provider” is also entitled to recover all reasonable expenses incurred in obtaining payment from “The Customer” where any payment due to “The Service Provider” is late.

7.8. “The Service Provider” shall retain records relating to the provision of “Services” under “The Agreement” for the term of this Agreement and for a period of 1 year thereafter.

7.9. “The Service Provider” will invoice “The Customer” monthly in advance for its charges for time, expenses and materials for the month concerned.

7.10. Expenses shall be recharged by “The Service Provider” to “The Customer” without uplift or administration charge; “The Customer” may settle expenses directly where appropriate.

7.11. Additional Expenses relating to on-site work including but not limited to: Hotel, Travel and Meal costs will be recharged at cost by “The Service Provider” to “The Customer”. Where these Expenses will apply “The Customer” will be notified prior to any works being carried out. Where appropriate “The Customer” may settle expenses directly. Details and Standards for these Expenses are included in “The Agreement”.

8. Renewals

8.1 We will inform you of your automatic renewal 30 days before your initial subscription period is due to end. Your subscription will continue to be automatically renewed until you cancel your contract as described in Clause 11.

8.2 We will inform you of any change in price at least 30 days before the change is due to take effect. If you do not agree to such a change, you may cancel the contract as described in Clause 11.

9. Service Levels

9.1. “The Service Provider” shall provide the “Services” so as to achieve or exceed The Service Levels as set out in “The Agreement”

9.2. If The Service Levels are not achieved “The Service Provider” shall:

9.2.1. At the request of “The Customer” as soon as practicable thereafter and at no additional charge to “The Customer”, arrange all such additional resources as are necessary to correct the said failure so as to remedy the failure and/or prevent its reoccurrence.

9.2.2. At the request of “The Customer” and where applicable, re-perform any non-conforming services at no additional charge to “The Customer”.

9.2.3. “The Service Provider” shall not be liable for any failure to achieve the required Service Levels to the extent that such failure results from a breach by “The Customer” of any of its obligations under “The Agreement” or an event of force majeure falling within the scope of section 18.

10. Support and Maintenance

10.1. “The Customer” grants “The Service Provider” and/or its employees, agents or sub-contractors access to “The Customer’s” computer equipment, software, hardware and network in order to carry out the “Services”, and to enable “The Service Provider” to carry out Support and Maintenance.

10.2. “The Customer” agrees and acknowledges that “The Service Provider” will only provide Support and Maintenance on the basis of the agreed quote as it is made up/constituted on the Commencement Date. Should “The Customer” increase the amount of hardware or carry out their own installations, “The Service Provider” reserves the right to, at “The Service Provider’s” sole discretion, increase the charges payable by “The Customer”, or terminate the Contract, or terminate the Support element of the Contract or only provide Maintenance and Support for the Hardware and software as it is referred to in the signed quote and as it was comprised on the Commencement Date.

11. Termination

11.1. “The Agreement” shall continue for a period of no less than laid out in “The Agreement” and thereafter shall continue until terminated by either party by giving at least 3 (three) months’ notice in writing of its intention to terminate “The Agreement”.

11.2. “The Service Provider” may at its sole discretion agree to the early termination of a contract at “The Customers” request. In such event “The Service Provider” may allow “The Customer” to pay the remainder of the contract term in a single lump sum less a discount of 10% and minus any discount accrued calculated on a multi-year Agreement. For the avoidance of doubt, this means that if a 5-year contract has been entered into and the contract is terminated after 3 years “The Customer” shall attract the discount only for a 3-year contract; the difference in the discount between a 5-year and a 3-year contract shall be added to the termination fee.

11.3. “The Service Provider” shall have the right to terminate “The Agreement” with immediate effect by notice in writing to “The Customer” if “The Customer” fails to make any payment when it becomes due, and that sum remains unpaid for 60 days after written notice from “The Service Provider” intimating that the sum is outstanding.

11.4. Either party may terminate “The Agreement” forthwith by notice in writing to the other if:

11.4.1. The other party commits a material breach of “The Agreement” and, in the case of a breach capable of being remedied, fails to remedy it within a reasonable time of being given written notice from the other party to do so; or

11.4.2. The other party commits a material breach of “The Agreement” which cannot be remedied under any circumstances; or

11.4.3. The other party passes a resolution for winding up (other than for the purpose of solvent amalgamation or reconstruction), or a court of competent jurisdiction makes an order to that effect; or

11.4.4. The other party ceases to carry on its business or substantially the whole of its business; or

11.4.5. The other party is declared insolvent or convenes a meeting of or makes or proposes to make any arrangement or composition with its creditors; or a liquidator, receiver, administrative receiver, manager, trustee or similar officer is appointed over any of its assets.

11.5. “The Service Provider” reserves the right to terminate “The Agreement” in the event of a Data Breach resulting from the actions or omissions of “The Customer”.

11.6. Any rights to terminate “The Agreement” shall be without prejudice to any other accrued rights and liabilities of the parties arising in any way out of this Agreement as at the date of termination.

12. Customer Warranties

12.1. ”The Customer” warrants to “The Service Provider” that “The Customer” has not been induced to enter into this Agreement by any warranties or representations, except those specifically contained in this Agreement as warranties.

12.2. ”The Customer” warrants to “The Service Provider” that no “Customer Data” will infringe the Intellectual Property Rights of any third party, or contain anything which is obscene or defamatory, or which is malicious falsehood, or will breach any data protection legislation or principles.

12.3. ”The Customer” warrants to “The Service Provider” that “The Customer” has the right to disclose “The Customer” Data to “The Service Provider” and that “The Service Provider” is entitled to retain and process that information for the purpose of fulfilling the obligations it has under “The Agreement”.

12.4. ”The Customer” warrants to “The Service Provider” that they will endeavour to remain at all times compliant with legal requirements in terms of software licences and will not hold “The Service Provider” responsible for software licences.

12.5. “The Customer” warrants to “The Service Provider” That they accept any terms and conditions imposed upon them by any 3^rd Party Software that “The Service Provider” is instructed by “The Customer” to install, and that they will provide, where applicable, appropriate licenses to satisfy the licensing requirements of software so installed.

12.6. “The Customer” will own or have explicit rights of use for source code to products that require modification to source code.

12.7. “The Customer” shall have procedures and policies in place to meet their obligations regarding “Data Protection Laws”.

12.8. “The Customer” will not hold “The Service Provider” responsible for any breaches that occur due to the actions or omissions of “The Customer”.

13. Service Provider Warranties

13.1. “The Service Provider” warrants that the “Services” to be supplied under this Agreement will be carried out with reasonable skill and care by suitably qualified personnel.

13.2. No representation or warranty is given that “The Services” or “Deliverables” will be error-free or uninterrupted or that any such deficiencies can be corrected but “The Service Provider” will make best endeavours to offer an appropriate solution.

13.3. “The Service Provider” will supply all information, estimates and recommendations in good faith but cannot guarantee that the projected outcome will be achievable.

13.4. “The Service Provider” shall use its best endeavours to correct any errors but does not warrant that all such errors can and will be corrected.

13.5. In the event of any breach of any warranty “The Customer” must notify “The Service Provider” within 3 months in order to benefit from the remedy mentioned above.

14. Indemnity

“The Customer” agrees to indemnify and hold “The Service Provider” and its employees and agents harmless from and against all liabilities, legal fees, damages, losses, costs and other expenses in relation to any claims or actions brought against “The Service Provider” arising out of any breach by “The Customer” of the terms of this Agreement.

15. Limitation of Liability

15.1. Subject to Section 12, in no event shall “The Service Provider” be liable for any damages, including loss of business, loss of opportunity, loss of data, loss of profits or for any other indirect or consequential loss or damage whatsoever that is an indirect or secondary consequence of any act or omission of “The Service Provider” where such damages were not reasonably foreseeable.

15.2. Subject to Section 12 the total liability of “The Service Provider” to “The Customer” under this Agreement shall not exceed the sum for which “The Service Provider” carries comprehensive insurance cover pursuant to Section 13 below.

15.3. Notwithstanding the above Sections and following Sections both “The Service Provider” and “The Customer” will in any event, where error or failure that causes financial loss to either “The Service Provider“ or “The Customer”, where such error or failure could reasonably have been prevented or mitigated by normal activities expected by either party of the other, will undertake to seek remedy by discussion and negotiation to the satisfaction of both parties before the commencement of legal proceedings.

15.4. Nothing in this Agreement shall exclude or limit the liability of “The Service Provider” for fraudulent misrepresentation or for death or personal injury resulting from the negligence of The Service Provider” or the employees or agents of “The Service Provider”.

16. Insurance

During the term of this Agreement “The Service Provider” shall at its own expense maintain such insurances as required by any applicable law and as appropriate in respect of its obligations under this Agreement with an insurance company of repute; Such insurances shall include third party liability insurance.

“The Service Provider” shall on request supply copies of the relevant certificates of insurance to “The Customer” as evidence that such policies remain in force.

17. Confidentiality

17.1. Any information marked “confidential” or which may reasonably be supposed to be confidential received by “The Service Provider” in performance of the obligations set out in this Agreement shall not be used without “The Customer’s” prior written consent except for the purposes of this Agreement or disclosed to any person other than to the employees or agents of “The Service Provider” who have a need to know.

17.2. “The Customer” shall not disclose any information relating to the business and methods of “The Service Provider” learned or observed during “The Agreement”.

17.3. The undertakings contained in Section 16.1 and 16.2 shall not apply to information that is lawfully known to the recipient at the time of disclosure or which is already public knowledge or becomes so at a future date (otherwise than as a result of a breach of this clause) or which is ordered to be disclosed to a regulatory body or a court of competent jurisdiction.

17.4. “The Service Provider” shall ensure that any person referred to in ”The Agreement” is bound by similar confidentiality terms to those stated in this Section 16.

17.4.1. The confidentiality terms stated in this Section 16 shall remain in full force and effect during the term of this Agreement and upon termination of the contract shall continue for a period of 3 years.

17.4.2. All materials, equipment and tools, drawings, specifications and data supplied by “The Service Provider” to “The Customer” shall at all times be and remain the exclusive property of “The Service Provider”, but shall be held by “The Customer” in safe custody at its own risk and maintained and kept in good condition by “The Customer” until returned to “The Service Provider”, and shall not be disposed of or used other than in accordance with “The Service Provider’s” written instructions or authorisation.

17.4.3. For the avoidance of doubt, on termination of the Contract (howsoever arising) and payment in full of all monies owed by “The Customer” to “The Service Provider”, “The Service Provider” shall release to “The Customer” the administrative details.

18. No Poaching

For the term of this Agreement and for the period of 12 (twelve) months thereafter, without the prior written consent of the other party, neither party shall either directly or indirectly solicit or entice away (or seek or attempt to entice away) from the employment of the other party any person employed (or any person who has been so employed in the preceding 12 (twelve) months) by such other party in the provision or receipt of “The Services”. In the event of employment being offered and accepted by an employee of either party without due written consent then the employing party shall pay the equivalent of 12 (twelve) months’ salary of the employee to the other party.

19. Force Majeure

Neither party shall be liable to the other party for any delay or failure to perform any of its obligations under this Agreement if the delay or failure results from events or circumstances outside its reasonable control such as, but not limited to: strikes, lock-outs or other industrial disputes (whether involving the workforce of “The Service Provider” or any other party), failure of a utility service or 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 or sub-contractors. The party shall be entitled to a reasonable extension of its obligations after notifying the other party in writing of the nature and extent of such events.

20. Waiver

Failure or neglect by either party to exercise any of its rights or remedies under this Agreement will not be construed as a waiver of that party’s rights nor in any way affect the validity of the whole or part of this Agreement nor prejudice that party’s right to take subsequent action.

21. Severance

If any provision of this Agreement is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction such provision shall be severed and the remainder of the provisions hereof shall continue in full force and effect as if this Agreement had been agreed with the invalid illegal or unenforceable provision eliminated.

22. Variation

Any variation of this Agreement must be in writing and signed by or on behalf of both parties.

23. Governing Law and Jurisdiction

This Agreement shall be governed by and construed in accordance with the law of England and Wales and the parties submit to the exclusive jurisdiction of the courts of England and Wales.

24. Customer’s Obligations

24.1. ”The Customer” shall:

(a). co-operate with “The Service Provider” in all matters and appoint “The Customer’s” liaison, who shall have the authority to contractually bind “The Customer” on matters relating to the contract;

(b). provide in a timely manner such access to “The Customer’s” premises and data, and such office accommodation and other facilities, as is requested by “The Service Provider”;

(c). provide in a timely manner such information as “The Service Provider” may request, and ensure that such information is accurate in all material aspects; and

(d). be responsible (at its own cost) for preparing the relevant premises for the supply of “The Services”.

24.2. If “The Service Provider’s” performance of its obligations under the contract is prevented or delayed by any act or omission of “The Customer” or “The Customer’s” agents, sub-contractors or employees, “The Customer” shall be liable to pay to “The Service Provider” on demand all reasonable costs, charges or losses sustained or incurred by it. This includes, without limitation, any direct or indirect consequential losses, loss of profit and loss of reputation, loss or damage to property, injury to or death of any person and loss of opportunity to deploy resources elsewhere and is subject to “The Service Provider” confirming such costs, charges and losses to “The Customer” in writing.

24.3. ”The Customer” shall not, without the prior written consent of “The Service Provider”, at any time from the date of the Contract to the expiry of six months after the completion of The Services or the supply of any Services by “The Service Provider”, solicit or entice away from “The Service Provider” or employ or attempt to employ any person who is, or has been, engaged as an employee or sub-contractor of “The Service Provider”.

Appendix 1.0 Service Provider Sub Processors

• Office 365
• SharePoint
• Skype
• OneDrive
• Exchange
• Re-seller (see below)
  • Backup – Max Backup
  • Anti-Spam – Mimecast
  • Router – WatchGuard
  • LabTech
  • Backup Radar
  • Occular
  • Accounts (QuickBooks)
  • Spectrum
  • Heimdal
  • Webroot
  • e-days
  • Payroll (12Pay)

For Controllers:

• Anti-Spam
• Mimecast
• ProofPoint
• I-Sheriff
• I-Critical
• McAfee
• Router
• WatchGuard
• Cyberoam
• Datto
• Backup
• Datto
• Max Backup
• Any vendor that, with the controller’s consent, we pass additional information to, for the purposes of fulfilling “The Customer” requirements.

Last Edited – 21.07.2022