CSG 360º Managed Services Terms & Conditions
1. Interpretation
1.1 Unless the context otherwise requires, the following expressions have the following meanings:
Acceptance Date: has the meaning given in clause 2.4.
Authorised Machines: a [computer][laptop][tablet][hand-held electronic device] located in the Territory which meets the terms and conditions set out in this agreement and the minimum requirements set out in the Documentation.
Business Day: any day between Monday and Friday but excluding any bank holiday or a day when the clearing banks in London are closed.
Change Control Procedure: the procedures set out in clause 12.
Confidential Information: all confidential information (however recorded or preserved) disclosed by a party or its employees, consultants, officers, representatives, advisers, agents or sub-contractors involved in the provision or receipt of the Services (together, its Representatives) to the other party or that party’s Representatives in connection with this agreement which information is either labelled as such or should reasonably be considered as confidential because of its nature and the manner of its disclosure.
Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical and organisational measures: as defined in the Data Protection Legislation.
Contract(s): Contract(s) or agreement(s) for services provided by the company to the customer
CSG Intelligent Support Software: ConnectWise
Customer Data: the data inputted by the Customer or the Company on the Customer’s behalf for the purpose of using the Services or facilitating the Customer’s use of the Services.
Customer Site: any premises occupied by the Customer at which it receives the Managed Services.
Customer-site Equipment: any equipment located or to be located on a Customer Site but controlled or to be controlled exclusively by the Company 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 any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications).
Denial of Service Attack: an attack of any type where the attackers (hackers) attempt to prevent the Customer from accessing the Service.
Dispute: has the meaning given in clause 21.
Documentation: Accepted proposal and quotation
Effective Date: the date of this agreement.
Error: has the meaning given in clause 2.3.
Exit Plan: has the meaning given in clause 19.1, as such exit plan is updated and amended by the parties from time to time in writing.
Extended Term: has the meaning given in clause 18.1.
Fees: the fees payable to the Company, as outlined in the quotation
Force Majeure Event: the examples given in clause 19.
Good Industry Practice: the standards that fall within the upper quartile for the provision of business-critical managed services substantially similar or identical to the Managed Services, having regard to factors such as the nature and size of the parties, the Service Level Arrangements, the term, the pricing structure and any other relevant factors.
Hardware: all physical telecommunications, networking and computer equipment (including switches, routers, cables, servers, racks, cabinets and peripheral accessories) provided and used by the Company to deliver the Managed Services to the Customer
Initial Term: the period of 36 months from the Effective Date.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trademarks, trade names, domain names, rights in get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all existing and future rights capable of present assignment, applications for and 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.
Licence Keys: a pattern of numbers and/or letters created and delivered via a license generator which will be provided to the Customer by the Company to enable the Customer to use the Software subject to the terms and conditions of this agreement.
Managed Support: any error corrections, updates and upgrades that the Company 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, all as described in Schedule 3.
Maintenance Events: has the meaning given in paragraph 1 of Schedule 3.
Managed Services: the service described in the Managed Services features to be performed by the Company in accordance with this agreement.
Managed Services Specification: the specification for the Managed Services as described in the customer quotation
Normal Business Hours: [8.00] am to [6.00] pm local UK time on Business Days.
Priority 1, 2, 3 and 4 incidents: have the meanings given in Schedule 3.
Project Plan: the plan to be developed in the planning stage of the Set-up Services.
Regulatory Requirement: has the meaning given in clause 18.8.
Replacement Company: any entity with which the Customer contracts (or proposes to contract) to provide services similar to all or any of the Managed Services and Maintenance upon the expiry or termination of all or any part of this agreement for any reason.
Representatives: has the meaning given to that term in the definition of Confidential Information.
Service Level Arrangements: the service level arrangements set out in Schedule 4.
Service Requirements: the Customer’s requirements for the Managed Services as set out in the customer quotation.
Services: the Set-up Services, the Managed Services, the Maintenance and the Transition Services.
Set-up Services: the due diligence, configuration and related work referred to in clause 2 and Schedule 1, to be performed by the Company to set up the Managed Services.
Software: any software used by the Company (or any of its sub-contractors) 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 Company (Company Software). [Company Facility: has the meaning given in paragraph 3 of Schedule 2.]
Subscription Licensing: any technology vendor licensing that is and provided and billed on a recurring basis of monthly or annually.
Company Software: has the meaning given to that term in the definition of Software.
Company’s System: the information and communications technology system to be used by the Company (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.
Territory: the country in which the Customer is invoiced for the Managed Services unless agreed otherwise by the Company in writing.
Third Party Software: has the meaning given to that term in the definition of Software.
Transition Services: the services to be provided by the Company to implement the Exit Plan.
UK Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
Uptime Service Level: has the meaning given in paragraph 1.1 of Schedule 4.
Virus: includes any malicious code, Trojan, worm and virus, lock, authorisation key or similar device that impairs or could impair the operation of the Software or the Managed Services.
Work Product: all deliverables and all other reports, documents, materials, techniques, ideas, concepts, trade marks, know-how, algorithms, software, computer code, routines or sub-routines, specifications, plans, notes, drawings, designs, pictures, images, text, audio-visual works, inventions, data, information and other items, expressions, works of authorship or work product of any kind that are authored, produced, created, conceived, collected, developed, discovered or made by the Company (or any of its sub-contractors) in connection with the Services or which relate in any manner to the Services or which result from any work performed by the Company (or any of its sub-contractors) for the Customer, including any and all Intellectual Property Rights therein.
1.2 Clause, schedule and paragraph headings shall not affect the interpretation of this agreement.
1.3 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors or permitted assigns.
1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
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 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.7 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this agreement.
1.8 A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this agreement under that statute or statutory provision.
1.9 A reference to writing or written includes faxes but not e-mail.
1.10 References to clauses and schedules are to the clauses and schedules of this agreement; references to paragraphs are to paragraphs of the relevant schedule to this agreement.
2. Set-up Services
2.1 The Company shall initially use reasonable endeavours to ensure continuity of its personnel assigned to this agreement.
2.2 The Company shall perform the Set-up Services in accordance with the agreed onboarding schedule. The Company shall use reasonable endeavours to meet the performance dates agreed, but any such dates shall be estimates only, and time shall not be of the essence in this agreement.
2.3 When the Company considers that the Managed Services are ready for activation it shall so notify the Customer. Within 10 Business Days of such notification the Customer shall review the operation of the Managed Services to confirm that they function in material conformance with the Managed Services Specification. If the Managed Services fail in any material respect to conform with the Managed Services Specification, the Customer shall give the Company a detailed description of any such non-conformance (Error) in writing, within the five Business Day review period.
2.4 If the Managed Services are found to conform with the Managed Services Specification or if the Customer does not provide any written comments within the five Business Day review period described in Clause 2.3, the Managed Services shall be deemed accepted as from the date of the notification or expiry of the five Business Day review period (in each case the Acceptance Date).
3. Maintenance Support
3.1 The company will provide a full IT service desk facility during business hours, provide telephone, and email support in order to log incidents via support tickets. Full remote assistance as well as instructions to remedy the incident where possible. Tickets logged via the companies ticketing system with service level adhere depending on ticket classification.
3.2 Where the service desk is unable to remedy the issue remotely, the company will attend site during business hours in order to rectify the incident and undertake any necessary corrections and adjustments to the system to fulfil the support request.
4. Service provision
4.1 The Company shall provide the Managed Services from the Acceptance Date until expiry or termination of this agreement for any reason.
4.2 The Service Level Arrangements shall apply with effect from the start of the first complete month [commencing][occurring at least [30] days] after the Acceptance Date.
4.3 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.
4.4 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).
4.5 The Customer shall not provide the Managed Services directly or indirectly to third parties.
4.6 The Company reserves the right to:
(a) modify the Company’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 Company’s obligations under this agreement and its provision of the Services or the Service Level Arrangements. If such changes will have an adverse effect, the Company shall notify the Customer and the parties shall follow the Change Control Procedure.
5. Downtime and Service Suspensions
5.1 Without prejudice to the Company’s rights set out in clause 17.3 the Customer acknowledges that:
(a) the Company reserves the right to suspend access to any part or all of the Services at any time in the following circumstances:
(i) for scheduled downtime to permit the Company to conduct maintenance or make modifications to any Service;
(ii) in the event of a Denial of Service Attack or other attack on the Service or other event that the Company determines, in its sole discretion, may create a risk to any applicable Service, to the Customer or to any of the Company’s other customers if the Service were not suspended;
(iii) in the event that any Service is prohibited by law or the Company otherwise determines is necessary or prudent to do so for legal or regulatory reasons;
(iv) if the Customer engages in any conduct or activities that is in excess of average customer usage parameters including but not limited to the Customer’s bandwidth, CPU or disk space usage and such usage by the Customer is or may adversely affect the performance or availability of the Services, the Company’s infrastructure or resources, or the Company’s other customers; or
(v) if the Customer engages in any conduct or activities that in the Company’s reasonable opinion is a violation of any of the terms and conditions of this agreement.
(b) The Customer’s access to and use of the Services may be suspended for the duration of any unanticipated or unscheduled downtime or unavailability of any part or all of the Services for any reason, including as a result of power outages, system failures or other interruptions.
6. Customer Data
6.1 The Customer shall own all right, title and interest in and to all of the Customer Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data.
6.2 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 6 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.
6.3 The parties acknowledge that:
(a) if the Company processes any personal data on the Customer’s behalf when performing its obligations under this agreement, the Customer is the controller and the Company is the processor for the purposes of the Data Protection Legislation; and
(b) the personal data may be transferred or stored outside the EEA or the country where the Customer is located in order to carry out the Services and the Company’s other obligations under this agreement.
6.4 Without prejudice to the generality of clause 6.2, 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 Company for the duration and purposes of this agreement so that the Company may lawfully use, process and transfer the personal data in accordance with this agreement on the Customer’s behalf.
6.5 Without prejudice to the generality of clause 6.2, the Company shall, in relation to any personal data processed in connection with the performance by the Company of its obligations under this agreement:
(a) process that personal data only on the documented written instructions of the Customer unless the Company is required by the laws of any member of the European Union or by the laws of the European Union applicable to the Company and/or Domestic UK Law (where Domestic UK Law means the UK Data Protection Legislation and any other law that applies in the UK) to process personal data (Applicable Laws). Where the Company is relying on Applicable Laws as the basis for processing personal data, the Company shall promptly notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Company from so notifying the Customer;
(b) not transfer any personal data outside of the European Economic Area and the United Kingdom unless the following conditions are fulfilled:
(i) the Customer or the Company has provided appropriate safeguards in relation to the transfer;
(ii) the data subject has enforceable rights and effective legal remedies;
(iii) the Company 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 Company complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the personal data;
(c) 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;
(d) notify the Customer on becoming aware of a personal data breach;
(e) at the written direction 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
(f) maintain complete and accurate records and information to demonstrate its compliance with this clause 6 and immediately inform the Company if an instruction infringes the Data Protection Legislation.
7. Company’s obligations
7.1 The Company undertakes that the Services will be performed with all reasonable skill and care and the provisions of this agreement that the Managed Services will be provided substantially in accordance with the Managed Services Specification.
7.2 The undertaking in clause 7.1 shall not apply to the extent of any non-conformance that is caused by use of the Managed Services contrary to the Company’s instructions.
7.3 If the Services do not conform with the undertaking in clause 7.1, the Company shall, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking in clause 7.1.
7.4 Notwithstanding the foregoing, the Company does not warrant that the Customer’s use of the Managed Services shall be uninterrupted or error-free.
8. Security
8.1 The Company shall ensure that appropriate safety and security systems and procedures are maintained and enforced to prevent unauthorised access or damage to any and all Services, the Company’s System and related networks or resources and the Customer Data.
8.2 The Customer shall promptly inform the Company if it suspects or uncovers any breach of security and shall use all commercially reasonable endeavours to promptly remedy such breach.
8.3 The company will not be held responsible loss of data, loss of business – financial or otherwise – or any other loss relating to a virus, malware infection or any other system security breach.
8.4 The client will use reasonable judgement when opening files and links attached to emails, downloaded from the internet and provided on removable media, whether they appear suspicious or not.
8.5 The client is responsible for ensuring all of their assets are protected by up to date virus and malware protection and that definition updates are installed as soon as they are available.
9. Customer’s obligations
9.1 The Customer:
(a) shall provide the Company with:
(i) all necessary co-operation in relation to this agreement; and
(ii) all necessary access to such information as may be reasonably required by the Company,
in order to provide the Services, including Customer Data, security access information, and (subject to providing any confidentiality undertakings reasonably required by the Customer) software interfaces to the Customer’s other business applications;
(b) shall provide such personnel assistance as may be reasonably requested by the Company from time to time;
(c) shall comply with all applicable laws and regulations with respect to its activities under this agreement;
(d) shall carry out all other Customer responsibilities set out in this agreement or in any of the Schedules in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the parties, the Company may adjust any timetable or delivery schedule set out in this agreement as reasonably necessary;
(e) shall only use the Software and CSG Intelligent Support Software on the Authorised Machines;
(f) shall not permit or cause to permit any competitor of the Company to use the Software without obtaining the prior written authorisation from the Company;
(g) acknowledges and agrees that the Software and the Managed Services will be programmed by the Company to monitor and track the number of deployed copies of the Software, Authorised Machines, users and other usage and the Customer irrevocably authorises the Company to do the same for the duration of the Initial Term and any Extended Term (if applicable); and
(h) acknowledges that the Software and the Managed Services functions are enabled via Licence Keys issued by the Company to the Customer and the Customer further acknowledges and agrees that the Company may, in extreme circumstances, disable or refuse to renew or replace Licence Keys which may result in part or all of the Software and/or the Managed Services unusable.
10. Warranties
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 Company under this agreement, including the right to provide the Software and Hardware to the Company 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) the Company’s possession and use in accordance with this agreement of any materials (including third-party materials supplied by the Customer to the Company) shall not cause the Company to infringe the rights, including any Intellectual Property Rights, of any third party.
10.2 The Company 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 Company;
(b) it shall comply with all applicable laws and regulations in performing its obligations under this agreement;
(c) the Customer’s possession and use in accordance with this agreement of any materials (including third-party materials) supplied by the Company to the Customer shall not cause the Customer to infringe the rights, including any Intellectual Property Rights, of any third party;
(d) any software, system or telecommunications provided by or on behalf of the Company shall be tested for Viruses and any identified Viruses deleted in accordance with Good Industry Practice before the date of delivery or use of such software, systems or telecommunications by the Company; and
(e) all personnel and sub-contractors used by the Company in the performance of this agreement are adequately skilled and experienced for the activities they are required to perform.
11. Charges and payment
11.1 The Customer shall pay [Set-Up Services Fees set out in the accepted customer quotation for the Set-up Services and the Monthly Fees
11.2 The Customer shall reimburse the Company for all actual, reasonable travel costs and expenses including airfares, hotels and meals incurred by the Company in performance of the Set-up Services.
11.3 All amounts and Fees stated or referred to in this agreement are exclusive of value added tax, which shall be added to the Company’s invoice(s) at the appropriate rate.
11.4 The Company shall invoice the Customer [monthly] on a setup day of each month for all Services performed by the Company during that month.
11.5 The company shall invoice the customer [monthly] for all services that are relevant to the Customer agreement including but not limited to managed services, backup, security and subscription licensing.
11.6 Should there be any increase of subscription licenses from the 3rd party provider, the Company communicate such increases and charges will increase accordingly to the Customer agreement.
11.7 [If the Customer fails to make any payment due to the Company under this agreement by the due date for payment, then, without limiting the Company’s remedies under clause 17, the Customer shall pay interest on the overdue amount at the rate of 4% per annum above the Bank of England’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.
12. Change control
12.1 If either party wishes to change the scope of the Services (including Customer requests for additional services), it shall submit details of the requested change to the other in writing.
12.2 If either party requests a change to the scope or execution of the Services, the Company shall, within a reasonable time, provide a written estimate to the Customer of:
(a) the likely time required to implement the change;
(b) any variations to the Fees arising from the change; and
(c) any other impact of the change on the terms of this agreement.
12.3 If the Customer requests a change to the Hardware , Software or Services this must be agreeable by the company. Should changes impact delivery of services the company has the right to charge fees to redeliver services as a result.
12.4 If the Company requests a change to the scope of the Services, the Customer shall not unreasonably withhold or delay consent to it.
12.5 If either party wishes the other party to proceed with the relevant change referred to in clause 12.3, the Company has no obligation to do so unless and until the parties have agreed in writing the necessary variations to its charges, the Project Plan and any other relevant terms of this agreement to take account of the change.
13. Proprietary rights
13.1 The Customer acknowledges and agrees that, as between the parties, the Company and/or its licensors own all Intellectual Property Rights in the Work Product and in all other materials connected with the Services and/or developed or produced in connection with this agreement by the Company, its officers, employees, sub-contractors or agents. Except as expressly stated in this agreement, this agreement does not grant the Customer any rights to such Intellectual Property Rights.
13.2 The Company acknowledges and agrees that the Customer owns and retains all rights, title and interest in and to the Customer Data. The Company shall have no rights to access, use or modify the Customer Data unless it has the prior written consent of the Customer.
14. Domain names
14.1 If the Customer instructs the Company to obtain a domain name for the Customer, the Company shall act as an agent for the Customer in dealing with the relevant domain name registration authority. The contract for the domain name shall be between the Customer and the relevant domain name registration authority and the Customer agrees that it shall be solely responsible for renewals, and for legal, technical, administrative, billing or other requirements imposed by the relevant domain name registration authority (and relevant costs and expenses thereof).
14.2 The Company gives no warranty that the domain name requested shall not infringe the rights of any third party and all such enquiries shall be the responsibility of the Customer. The domain name shall form part of the Customer’s Intellectual Property Rights for the purposes of this agreement.
14.3 If the Company licenses to the Customer an IP address as part of the Services, such IP address shall (to the extent permitted by law) revert to the Company after expiry or termination of this agreement for any reason, whereupon the Customer shall cease using the address. At any time after such expiry or termination, the Company may re-assign the address to another user.]
15. Confidentiality and publicity
15.1 Each party agrees to, during the term of this agreement and thereafter, keep confidential, and shall not use for its own purposes (other than implementation of this licence) nor without the prior written consent of the other disclose to any third party (except its professional advisors or as may be required by any law or any legal or regulatory authority) any information of a confidential nature (including trade secrets and information of commercial value) which may become known to such party from the other party and which relates to the other party or any of its Affiliates, unless such information is public knowledge or already known to such party at the time of disclosure, or subsequently becomes public knowledge other than by breach of this licence, or subsequently comes lawfully into the possession of such party from a third party. Each party shall use its reasonable endeavours to prevent the unauthorised disclosure of any such information.
15.2 The Company may not refer to the Customer in any publicity or advertising material without first obtaining the Customer’s written consent.
16. Limitation of liability
16.1 Except as expressly and specifically provided in this agreement:
(a) the Customer assumes sole responsibility for results obtained from the use of the Managed Services by the Customer, and for conclusions drawn from such use. The Company shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Company by the Customer in connection with the Services, or any actions taken by the Company at the Customer’s direction; and
(b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this agreement.
16.2 Nothing in this agreement excludes the liability of the Company for death or personal injury caused by the Company’s negligence.
16.3 Subject to clause 16.1 and clause 16.2:
(a) the Company shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this agreement; and
(b) the Company’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement shall be limited to three (3) months singular service value in its entirety.
17. Indemnity
17.1 The Customer shall defend, indemnify and hold harmless the Company against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer’s use of the Managed Services, provided that:
(a) the Customer is given notice of any such claim;
(b) the Company provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer’s expense; and
(c) the Customer is given sole authority to defend or settle the claim.
17.2 The Company shall defend the Customer, its officers, directors and employees against any claim that the Managed Services infringe any United Kingdom patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:
(a) the Company is given prompt notice of any such claim;
(b) the Customer provides reasonable co-operation to the Company in the defence and settlement of such claim, at the Company’s expense; and
(c) the Company is given sole authority to defend or settle the claim.
17.3 In the defence or settlement of any claim, the Company may procure the right for the Customer to continue using the Managed Services, replace or modify the Managed Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this agreement on [2] Business Days’ notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
17.4 In no event shall the Company, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
(a) a modification of the Managed Services by anyone other than the Company; or
(b) the Customer’s use of the Managed Services in a manner contrary to the instructions given to the Customer by the Company; or
(c) the Customer’s use of the Managed Services after notice of the alleged or actual infringement from the Company or any appropriate authority.
18. Term and termination
18.1 This agreement shall commence on the Effective Date. Unless terminated earlier in accordance with this clause 17, this agreement shall continue in force for the Initial Term and shall automatically extend for the same period set out in the initial term (Extended Term) at the end of the Initial Term and at the end of each Extended Term. A party may give written notice to the other party, not later than 90 days before the end of the Initial Term or the relevant Extended Term, to terminate this agreement at the end of the Initial Term or the relevant Extended Term, as the case may be.
18.2 Without prejudice to any rights that have accrued under this agreement or any of its rights or remedies and subject to clause 19, the Customer may terminate this agreement on giving not less than 90 days’ written notice to the Company, provided that on any such termination it shall, without prejudice to any accrued rights or obligations as at that time, be obliged to pay termination compensation to the Company calculated as follows:
a) The remaining balance of the contract(s) and services
b) All outstanding monies owed to the company
18.3 Without prejudice to any other right or remedy available to it, and subject to clause 19, either party may terminate this agreement with immediate effect by giving written notice to the other party if:
(a) the other party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 5 Business Days after being notified in writing to make such payment;
(b) the other party commits a material breach of any term of this agreement and (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
(c) the other party breaches any of the terms of clause 15;
(d) 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 is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
(e) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(f) a petition is filed, a notice is given, a resolution is passed, or an order is made for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(g) an application is made to court, or an order is made, for the appointment of an administrator, or a notice of intention to appoint an administrator is given, or an administrator is appointed, over the other party;
(h) the holder of a qualifying floating charge over any of the assets of that other party has become entitled to appoint or has appointed an administrative receiver;
(i) a person becomes entitled to appoint a receiver over any of the assets of the other party or a receiver is appointed over any of the assets of the other party;
(j) 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 the other party’s assets and such attachment or process is not discharged within 14 days;
(k) any event occurs, or proceeding is 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 20.3(d) to clause 20.3(i) (inclusive);
(l) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
(m) there is a change of control of the other party (within the meaning of section 1124 of the Corporation Tax Act 2010)
18.4 Without prejudice to any other right or remedy available to it, and subject to clause 19 the Customer may terminate this agreement with immediate effect by giving written notice to the Company if the Company breaches any of the terms of clause 5 or clause 8.
18.5 Any provision of this agreement which expressly or by implication is intended to come into or continue in force on or after expiry or termination of this agreement shall remain in full force and effect.
18.6 Expiry or termination of this agreement for any reason shall not affect the accrued rights, remedies, obligations or liabilities of the parties existing at expiry or termination.
18.7 On expiry or termination of this agreement for any reason:
(a) the Company shall immediately cease provision of the Set-Up Services, Managed Services and Maintenance Services but may provide Transition Services for a further period in accordance with clause 19.2; and
(b) (subject to clause 18.8) each party shall return and make no further use of any equipment, property, materials and other items (and all copies of them) belonging to the other party and the Customer shall cease to use any IP address licensed to the Customer by the Company pursuant to clause 14.3.
18.8 If a party is required by any law, regulation, or government or regulatory body (Regulatory Requirement) to retain any documents or materials which it would otherwise be obliged to return or destroy, it shall notify the other party in writing of such retention, giving details of the documents or materials that it must retain. clause 15 shall continue to apply to any such retained documents and materials for as long as any such requirement continues in force, subject to any disclosure mandated by any Regulatory Requirement.
19. Exit assistance
19.1 The Company shall, on request from the Customer at any time after the expiry of [six] months from the Acceptance Date, prepare a plan for the orderly transition of the Services from the Company to the Customer or its nominated Replacement Company (Exit Plan).
19.2 The Customer may, at any time before expiry or termination of all or any part of this agreement for any reason request the Company to provide the Transition Services or otherwise to offer reasonable assistance in transitioning the Services to the Customer or a Replacement Company (by providing the Transition Services). The Company shall, in consideration of a reasonable fee (to be agreed in advance), provide such Transition Services for a maximum period of [three] months, or until expiry or termination of all or any part of this agreement for any reason in accordance with clause 17, whichever is later.
20. Force Majeure
The Company shall have no liability to the Customer under this agreement if it is prevented from or delayed in performing its obligations under this agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Company or any other party), failure of a utility service or transport or telecommunications 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, provided that the Customer is notified of such an event and its expected duration.
21. Expert Determination
21.1 Any technical dispute, shall be referred for final settlement to an expert agreed by the parties or, if not agreed within 14 days of either party’s written request to the other, as determined, at the written request of either party, by the President of the British Computer Society. Such expert shall be deemed to act as an expert and not as an arbitrator. The expert’s decision shall, in the absence of manifest error, be final and binding on the parties.
21.2 The parties are entitled to make submissions to the expert and will provide (or procure that others provide) the expert with such assistance and documents as the expert reasonably requires for the purpose of reaching a decision.
21.3 Each party shall bear its own costs in relation to the reference to the expert. The expert’s fees and any costs properly incurred by him in arriving at his determination (including any fees and costs of any advisers appointed by the expert) shall be borne by the parties equally or in such other proportions as the expert shall direct.
22. Conflict
If there is an inconsistency between any of the provisions in the main body of this agreement and the Schedules, the provisions in the main body of this agreement shall prevail.
23. Variation
No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
24. Waiver
No failure or delay by a party to exercise any right or remedy provided under this 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.
25. Rights and Remedies
Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
26. Severance
26.1 If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement.
26.2 If any provision or part-provision of this agreement is deemed deleted under clause 26.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
27. Entire Agreement
27.1 This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
27.2 Each party acknowledges that in entering into this agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement.
27.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
28. Assignment
28.1 The Customer shall not, without the prior written consent of the Company, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
28.2 The Company may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
29. No Partnership or Agency
Nothing in this agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
30. Third Party Rights
This agreement does not confer any rights on any person or party (other than the parties to this agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
31. Notices
31.1 Any notice required to be given under this agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in this agreement, or such other address as may have been notified by that party for such purposes, or sent by fax to the other party’s fax number as set out in this agreement.
31.2 A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9:00 am on the first Business Day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by fax shall be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender).
32. Governing Law
This agreement 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.
33. Jurisdiction
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 this agreement or its subject matter or formation (including non-contractual disputes or claims).
This agreement has been entered into on the date stated at the beginning of it.
Schedule 1 Set-up Services
Part 1 Outline
1. Planning and Due Diligence
The Company shall prepare the schedule / plan in co-operation with the Customer.
2. Implementation
The Company and the Customer shall co-operate in implementing the Managed Services in accordance with the implementation provisions of the schedule / plan.
3. Roll-out
The Company and the Customer shall co-operate in rolling out the Managed Services in accordance with the roll-out provisions of the schedule / plan.
Schedule 2 Managed Services Features
24/7 Management and monitoring of your network.
Unlimited telephone, remote and onsite support where required.
Hardware Maintenance Cover – replacement parts & under 5 years old
Access to 28 x helpdesk & support personnel
CSG Helpdesk Online (Internet Call Management)
Inclusive IT administration cover
Weekly / monthly management reports
Security patch management
System, security and application log monitoring
Virus protection management
Daily system audits
Live connect end user support portal
Hardware change notification. Asset management
Third party vendor support and administration
Immediate and up to 4-hour response Helpdesk opening times; Monday to Friday 8am – 6pm
Examples of potential services offered by the company to its customers
1. Installation and configuration
The Company shall procure, install and configure equipment for use to provide the Services. This includes the rack mounting of servers and related equipment, installation of system and database software components assisted by third party vendors, configuration of clustering, installation of the Software and loading of initial Customer Data. Procurement of computer hardware, software
2. Internet connectivity
2.1 The Company shall provide internet connectivity to the Customer. The connectivity where available shall include multiple a managed internet connection, a firewall for security, and optional backup connections where specified and required.
2.2 The Company can supply managed dedicated bandwidth connectivity services. The connectivity can include multiple connections and a network operations centre that monitors servers, the network platform and internet access.
3. Managed Security Services
The Company shall provide security services as follows:
(a) advice, deployment and management of Managed Anti-Virus, Ransomware protection, next generation firewalls, email security including multi factor authentication and management of mobile devices. The consumption of these services will depend on the agreement
(b) remedial services will be provided to remove any malicious code or threat from the clients systems should a breach be notified where services have been deployed and managed.
(c) data access security shall be provided through managed firewall services with security on all web pages, a private network path for administration and SNMP monitoring, and fully hardened servers.
4. Monitoring services
The Company shall provide, 24 hours a day and seven days a week, monitoring of the computing, operating and networking infrastructure to detect and correct abnormalities. This includes environmental monitoring, network monitoring, hardware monitoring, web server and database monitoring, firewall monitoring and intrusion detection.
5. Backup, archiving and recovery services
The Company shall develop the backup schedule, perform scheduled backups, provide routine and emergency data recovery and manage the archiving process. The backup schedule shall include at least weekly full backups and daily incremental backups. In the event of data loss, the Company shall provide recovery services to try to restore the most recent backup only where the recommended backup technology has been deployed and is supported.
6. Release management and change control
The Company shall provide release management and change control services to ensure that versions of servers, network devices, storage, operating system software and utility and application software are audited and logged, and that new releases, patch releases and other new versions are implemented as deemed necessary by the Company to maintain the Services.
7. Administration services
These services include the installation and administration of additional Hardware, operating systems and other software, and other resources as necessary to maintain the Services.
Schedule 3 Maintenance and support
1. Maintenance Events
1.1 Maintenance work that may require interruption of the Managed Services (Maintenance Events) shall not normally be performed during Normal Business Hours. The Company may interrupt the Managed Services outside Normal Business Hours for maintenance provided that it has given the Customer at least [three] days’ advance written notice.
1.2 Any Maintenance Events that occur during Normal Business Hours, or that occur with less notice than required by paragraph 1.1, and which were not requested by the Customer, shall be considered downtime for the purpose of service availability measurement. The Company shall at all times endeavour to keep any service interruptions to a minimum.
1.3 Should the Customer determine that the Managed Services include a defect, the Customer may file error reports or support requests. The Company shall provide technical support services to the Customer.
2. Technical support services
2.1 The Company shall accept voicemail, e-mail and web form-based incident submittal from the Customer 24 hours a day, seven days a week. The Company shall accept telephone calls for English language telephone support during normal Business Hour]. The Company shall use reasonable endeavours to process support requests, issue ticket tracking numbers if necessary, determine the source of the problem and respond to the Customer. The Company shall use reasonable endeavours to respond to and resolve all support requests from the Customer within the time periods specified below, according to priority setup in
3. Service Level Agreement
3.1 CSG will attempt to adhere to the following support service level
| Priority | SLA Type | Goal (hours) |
| P1
– LAN/WAN offline – Disaster recovery – Imminent financial loss |
Response time | 0.25 |
| Planning time | 0.5 | |
| Resolution time | 8 | |
| Updated | 0.5 | |
| P2
– 1 or more users unable to work – AD password resets – Server hardware issues *User must be 100% inoperative |
Response time | 0.5 |
| Planning time | 0.5 | |
| Resolution time | 8 | |
| Updated | 0.5 | |
| P3
– Standard requests – Disruptive issues |
Response time | 0.5 |
| Planning time | 2 | |
| Resolution time | 12 | |
| Updated | 0.5 | |
| P4
– Non-disruptive issues – Work scheduled forward by the client |
Response time | 0.5 |
| Planning time | 3 | |
| Resolution time | 80 | |
| Updated | 0.5 |
Schedule 4 Service Level Arrangements
1. Support Service availability
1.1 The Company shall attempt to provide at least a [99.5]% uptime service availability level (Uptime Service Level).
1.2 The Managed Services shall be considered as unavailable only:
(a) during periods of Priority 1 or Priority 2 incidents in accordance withSchedule 3; and
(b) during periods of unplanned Maintenance in accordance with paragraph 1.2 of Schedule 3.
1.3 For the avoidance of doubt, the Managed Services shall not be considered as “unavailable” during Maintenance Events as described in paragraph 2.1 of Schedule 3, Customer-caused outages or disruptions, or outages or disruptions attributable in whole or in part to Force Majeure Events within the meaning of clause 20.