TERMS AND CONDITIONS
These standard terms and conditions shall apply to and govern the provision to and use by the Customer of the Services as specified in an executed Business Agreement or delivery of Equipment or an Installation ordered by a Customer
BACKGROUND
(A) D&D is in the business of providing IT and networking services and/or delivery of equipment or providing an Installation to learning institutions and businesses.
(B) The Customer agrees to obtain, and D&D agrees to provide the Services and/or Equipment and/or an Installation on these Terms in the agreement.
The following definitions and rules of interpretation apply in these Terms.
1.1 Definitions:
Additional Chargeable Services: means those Services provided by D&D that are not Inclusive Services. The charges payable by the Customer for the supply of the Additional Chargeable Services are set out in Schedule 2 of Business Agreement.
Audit: our assessment of the Customer’s equipment, systems and requirements based on number of users, computers and servers, other ICT equipment, technical complexity, service levels required, and the volume of data involved, to be agreed with the Customer.
Business Day: a day other than a Saturday, Sunday, or public holiday in England, when banks in London are open for business.
Business Hours: the period from 8.30 a.m. to 5.30 p.m. on any Business Day.
Charges: means the charges payable for the Equipment or the Installation or the supply of Services in the Business Agreement.
Contract: the contract between the Customer and D&D for the supply of Services or Equipment or an Installation in accordance with these Terms.
Contract Period: the period of the agreement as set out in the Business Agreement.
Controller: shall have the meaning given in applicable Data Protection Laws from time to time.
Customer: any party entering into a Business Agreement or other agreement with D&D.
Customer Data: any information that the Customer provides D&D as part of the Services.
Customer Default: has the meaning set out in clause 5.2.
D&D: D&D Network Services Limited.
D&D Personnel: all employees, officers, staff, other workers, agents, and consultants of D&D and any of their sub-contractors who are engaged in the performance of the Services from time to time.
Data Protection Laws: means, as binding on either party or the Services.
Data Subject: shall have the meaning in applicable Data Protection Laws from time to time.
Delivery Address: means the location set out in the Order Proposal for the delivery of the Equipment.
Deliverables: the deliverables set out in the Business Agreement executed by D&D and the Customer.
Equipment: means the equipment, software and related accessories, spare parts and documentation and other physical material set out in the Business Agreement or Contract or understood by the parties to be included in the Equipment and to be supplied by D&D to the Customer.
Force Majeure: means an event or sequence of events beyond a party’s reasonable control (after exercise of reasonable care to put in place robust back-up and disaster recovery arrangements) preventing or delaying it from performing its obligations under this agreement including an act of God, fire, flood, lightning, earthquake, pandemic, epidemic or other natural disaster, war, riot or civil unrest, interruption or failure of supplies of power, internet, third party hosting services, failure of software provided by third parties, fuel, water, transport, equipment or telecommunications service, or material required for performance of this agreement, strike, lockout or boycott or other industrial action including those involving D&D’s or its suppliers’ workforce, but excluding the Customer’s inability to pay or circumstances resulting in the Customer’s inability to pay.
GDPR: means the General Data Protection Regulation, Regulation (EU) 2016/679.
Incident: an event which is not part of the standard operation of a Service, and which causes or may cause disruption to or a reduction in the quality of Services and the Customer normal productivity.
Inclusive Services: those services set out in the Business Agreement.
Installation: the installation of Equipment at the Customer’s premises pursuant to a Contract
Intellectual Property Rights: means copyright, patents, know-how, trade secrets, trademarks, trade names, design rights, rights in get-up, rights in goodwill, rights in confidential information, rights to sue for passing off, domain names and all similar rights and, in each case:
IT System: The Customer’s IT System (including hardware and software) as at the
Commencement Date, for which support is being provided by D&D under the Business Agreement.
Order Proposal: the written document produced by D&D and signed by the Customer comprising of an Order proposal and these Terms.
Personal Data: has the meaning given in the applicable Data Protection Laws from time to time.
Privacy Statement: means the privacy statement on D&D’s webpage.
Processing: has the meaning given to it in applicable Data Protection Laws from time to time (and related expressions, including process, processed, and processes shall be construed accordingly).
Processor: has the meaning given to it in applicable Data Protection Laws from time to time.
Protected Data means Personal Data received from or on behalf of the Customer in connection
with the performance of D&D’s obligations under the agreement.
Services: means the Inclusive Services, Deliverables, Installation and any other services supplied by D&D to the Customer as set out in the Contract or the Business Agreement or other agreement executed by D&D and the Customer.
Terms: these terms and conditions as amended from time to time in accordance with clause 17.
Trial Period: any trial period for performance of the Deliverables as set out in the Business Agreement (if applicable); and
VAT: means value added tax under the Value Added Taxes Act 1994 or any other similar sale or fiscal tax applying to the sale of the Deliverables.
1.2 Interpretation:
(a) a reference to these Terms includes these Terms, appendices, and annexes (if any).
(b) any clause, schedule or other headings in the Terms or the Business Agreement are included for convenience only and shall have no effect on the interpretation of the Terms or the Business Agreement.
(c) a reference to a party means either D&D or the Customer and includes that party’s personal representatives, successors and permitted assigns.
(d) reference to a person includes a natural person, corporate or unincorporated body (in each case whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns.
(e) a reference to a company includes any company, corporation, or other body corporate, wherever and however incorporated or established.
(f) a reference to a gender includes each other gender.
(g) words in the singular include the plural and vice versa.
(h) any words that follow include, includes, including, in particular or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words.
(i) a reference to writing or written includes any method of reproducing words in a legible and non-transitory form.
(j) a reference to these Terms or the Business Agreement or to any other agreement or document referred to in these Terms or the Business Agreement is a reference to these Terms or the Business Agreement or such other agreement or document, in each case as varied from time to time.
(k) a reference to legislation is a reference to that legislation as amended, extended, re- enacted, or consolidated from time to time; and
(l) a reference to any English action, remedy, method of judicial proceeding, court, official, legal document, legal status, legal doctrine, legal concept, or thing shall, in respect of any jurisdiction other than England, be deemed to include a reference to that which most nearly approximates to the English equivalent in that jurisdiction.
2.1 An Order Proposal issued by D&D to the Customer shall not constitute an offer and is only valid for a period of 30 days from the date of issue.
2.2 A signed Order Proposal returned to D&D by the Customer constitutes an offer by the Customer to purchase the Services and/or Equipment or an Installation from D&D in accordance with these Terms.
2.3 The Order Proposal shall only be accepted following D&D accepting the Order Proposal at which point the Contract shall come into existence.
2.4 Any samples, drawings, descriptive matter or advertising issued by D&D and any descriptions of the Equipment or illustrations or descriptions of the Installation Services contained in D&D’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Equipment or Installation described in them. They shall not form part of the Contract nor have any contractual force.
2.5 These Terms apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
2.6 All of these Terms shall apply to the supply of both Equipment and Services and an Installation except where application to one or the other is specified.
3.1 The Business Agreement shall commence on the date when it has been signed by all the parties (Commencement Date) and shall continue, unless terminated earlier in accordance with clause 11 (Termination), until the expiry of the Contract Period when it shall automatically renew in accordance with clause 11.1 or terminate by notice in accordance with clause 11.1.
3.2 D&D shall provide the Services to the Customer in accordance with the Business Agreement and these Terms.
4.1 D&D shall supply the Services and, where relevant, the Equipment to the Customer in accordance with the Business Agreement or the Contract in all material respects.
4.2 D&D shall use all reasonable endeavours to meet any performance dates specified in the Business Agreement or the Contract, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
4.3 D&D reserves the right to amend the Services 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 D&D shall notify the Customer in any such event.
4.4 D&D warrants to the Customer that the Services will be provided using reasonable care and skill.
5.1 The Customer shall:
(a) ensure that the terms of the Services and any information it provides in relation to the Services are complete and accurate.
(b) co-operate with D&D in all matters relating to the Services.
(c) provide D&D, its employees, agents, consultants, and subcontractors, with access to the Customer’s premises, office accommodation, servers, network equipment, relevant passwords and other facilities as reasonably required by D&D.
(d) provide D&D with such information and materials as D&D 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) obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start; and
(g) keep all materials, equipment, documents, and other property of D&D (D&D Materials) at the Customer’s premises in safe custody at its own risk, maintain D&D Materials in good condition until returned D&D, and not dispose of or use the D&D Materials other than in accordance with D&D’s written instructions or authorisation.
(h) appoint a manager for the Services, who shall have the authority to contractually to bind the Customer on matters relating to the Services.
(i) provide in a timely manner such information as D&D may request and ensure that such information is accurate in all material respects.
(j) be responsible (at the Customer’s own cost) for preparing the relevant premises for the supply of the Services.
(k) provide D&D and our agents, subcontractors, consultants and employees, in a timely manner and at no charge, access the Customer’s premises, office accommodation, servers, network equipment, PC’s, administrator accounts and passwords, data and other facilities as required by D&D.
(l) provide D&D with administrator level remote access the Customer’s network where available assist with the provision of alternative means for remote connection if possible.
(m) ensure that all systems have appropriate anti-virus software installed that is regularly updated.
(n) ensure that when D&D engineers make site visits all work requested can be carried out within the constraints of the Customer’s Health and Safety policy.
(o) comply with the Customer’s obligations in D&D recommended backup procedure including those obligations set out below.
(p) have in place a suitable disaster recovery plan including the removal of backup or media from the Customer site to ensure a recovery avenue should a disaster occur.
(q) ensure that software provided for install or support is licensed correctly, and that D&D are provided with access to software stores and portals required to be able to install any requested software.
5.2 If D&D’s performance of any of its obligations under this agreement 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, D&D 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) D&D 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 4.2; and
(c) the Customer shall reimburse D&D on written demand for any costs or losses sustained or incurred by D&D arising directly or indirectly from the Customer Default.
6.1 Equipment specification and Installation specification is set out in the Order Proposal.
6.2 D&D shall use its reasonable endeavours to deliver the Equipment to the Delivery Address or effect the Installation on the date set out in the Contract but time shall not be of the essence for the delivery of any Equipment or any Installation.
6.3 Where the Customer is required by D&D to take delivery of Equipment, it shall do so within a maximum of 5 Business Days of D&D giving notice to it that the Equipment is ready for delivery.
6.4 D&D may deliver the Equipment by separate instalments. Each instalment shall be invoiced and paid for in accordance with the provisions of these Terms.
6.5 Risk in the Equipment shall pass to the Customer on delivery to the Customer at the Delivery Address.
6.6 Title in Equipment shall not pass to the Customer until the Customer has paid D&D in full for any and all Equipment delivered to the Customer pursuant to all Order Proposals and until the title in the Equipment has passed to the Customer, D&D shall:
6.6.1 insure the Equipment to its full reinstatement value with a reputable insurer and provide a copy of such insurance documentation to D&D if requested to do so in writing by D&D.
6.6.2 hold the Equipment on a fiduciary basis as D&D’s or a third-party owner bailee.
6.6.3 use the Equipment only in accordance with the manufacturer’s instructions; and
6.6.4 keep the Equipment separate from any other equipment and mark the Equipment as the property of D&D.
6.7 Until title has passed to the Customer, the Customer grants D&D, its agents and employees an irrevocable licence at any time to enter any site where the Equipment is or may be stored in order to inspect them, or, where the Customer’s right to possession has terminated to recover them.
6.8 Equipment provided by D&D pursuant to the Contract is sold with the benefit of the manufacturer’s warranty only. D&D shall use its reasonable endeavours to assist the Customer with warranty claims against the relevant manufacturer and/or use its reasonable endeavours to assign the benefit of any manufacturer’s warranty to the Customer. The Customer acknowledges that D&D provides no additional warranty in relation to any Equipment provided under the Contract.
7.1 The charges for the Additional Chargeable Services shall be calculated on a time and materials basis:
(a) the charges for the Additional Chargeable Services shall be calculated in accordance with D&D’s daily fee rates as set out in Schedule 2 of the Business Agreement and will be for any additional services not forming part of the Inclusive Services.
(b) D&D’s daily fee rates for each individual are calculated based on an eight- hour day from 8.30 am to 5.30 pm worked on Business Days.
(c) D&D shall be entitled to charge an overtime rate of 46% of the daily fee rate on a pro- rata basis for each part day or for any time worked by individuals whom it engages on the Services outside the hours referred to in clause 5.1(b); and
(d) D&D shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom D&D engages in connection with the Inclusive Services and/or Additional Chargeable Services including travelling expenses, hotel costs, subsistence, and any associated expenses, and for the cost of services provided by third parties and required by D&D for the performance of any of the Services, and for the cost of any materials.
7.2 D&D reserves the right to increase the rates for the Services it provides to the Customer on an annual basis with effect from each anniversary of the Commencement Date.
7.3 D&D shall invoice the Customer on completion of the Services monthly in arrears for the Inclusive Services.
7.4 The Customer shall pay each invoice submitted by D&D:
(a) within 30 days of the date of the invoice or in accordance with any credit terms agreed by D&D and confirmed in writing to the Customer.
(b) in full and in cleared funds to a bank account nominated in writing by D&D, and time for payment shall be of the essence of the agreement.
(c) where the Customer sets up a standing order, the Customer will arrange for its bank to accept the standing order mandate provided by D&D.
7.5 All amounts payable by the Customer under this agreement 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 this agreement by D&D to the Customer, the Customer shall, on receipt of a valid VAT invoice from D&D, pay to D&D such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
7.6 The Charges set out in the Business Agreement are based on D&D’s Audit. Where there is a change to the matters reported on in D&D’s Audit which will lead to a cost increase, D&D reserves the right to increase these prices with 30 days’ notice. If the Customer does not agree to the increased prices, the Customer may terminate this agreement by giving D&D at least three months’ notice in writing.
7.7 If the Customer fails to make a payment due to D&D under this agreement by the due date, then, without limiting D&D ‘s remedies under clause 14, the Customer shall 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 7.7 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%. The Customer shall pay the interest together with the overdue amount D&D also reserve the right to charge debt recovery compensation as set out in The Late Payment of Commercial Debts (Interest) Act 1998 (Late Payment Act).
7.8 All amounts due under this agreement 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).
8.1 D&D will suspend the Services without liability to the Customer with immediate effect upon the provision of written notice in the event that:
8.1.1 D&D reasonably believes that the Services are being used in an unauthorised or illegal manner.
8.1.2 the Customer is in material breach of any of its obligations under the Business Agreement.
8.1.3 any regulatory body requires D&D to suspend the Services;
8.1.4 the Customer fails to pay any of the Charges on the due date for payment.
8.1.5 D&D needs to carry out scheduled updates, upgrades or maintenance to the Services.
8.1.6 D&D, in cases of emergency, needs to carry out unscheduled maintenance to the Services.
8.2 Where D&D, in D&D’s sole discretion, reinstates the Services following a suspension where the suspension arises pursuant to clause 8.1 as a result of the Customer’s default, the Customer’s may be liable for an administration fee.
9.1 D&D will provide the Customer with a recommended procedure to back up data on the Customer’s systems. D&D will recommend the necessary hardware and software to achieve regular scheduled backups however it is ultimately the responsibility of the Customer to ensure it follows the procedure accurately and take all measures necessary to ensure that backups are secure, completed and any media changed according to the procedure. This includes but is not limited to ensuring:
(a) backup media such as tapes, disks and cartridges are changed daily or in accordance with a rota cycle.
(b) regular cleaning of the backup unit (if applicable).
(c) backup media is kept in a safe location before and after being used. This includes ensuring that
(d) the environmental storage conditions are followed strictly.
(e) copies of backups are taken offsite in accordance with any information security procedures.
(f) that backups have completed successfully.
(g) backup media is replaced earlier or within the life cycle of that media or every 12 months.
(h) and that all critical data is stored centrally (on a server) within standard folders included in D&D’s backup procedure. If data is stored elsewhere – for example on a user’s desktop, local folders or on the hard disk of a workstation, this will not be backed up
10.1 When the Customer reports any Incident to D&D which affects the services, D&D will categorise this as either being an Incident within the control of D&D (“In Control Incident”) or outside of D&D’s control (“Out of Control Incident”).
10.2 For any Out-of-Control Incident, D&D will report the Incident to the relevant service provider and report to the Customer on any resolution that they provide. For example, D&D may have to rely on information and patches from Microsoft to resolve an Out-of-Control Incident affecting Microsoft service issues. In some cases, if newly discovered issues arise, there may be a delay in receiving the appropriate updates from Microsoft for a resolution.
10.3 Any Incident involving any third-party software title shall be an Out-of-Control Incident.
10.4 Where an Incident is an in-Control Incident, this will be classified as Critical or Non-Critical. A Critical Incident is one that affects more than 90% of the users of any particular service. Any other Incident will be classified as non-Critical.
11.1 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 D&D.
11.2 D&D grants to the Customer or shall procure the direct grant to the Customer of, a fully paid-up, worldwide, non-exclusive, royalty-free licence during the term of this agreement to copy the Deliverables (excluding materials provided by the Customer) for the purpose of receiving and using the Services and the Deliverables in its business.
11.3 The Customer shall not sub-license, assign or otherwise transfer the rights granted in clause 8.2.
11.4 The Customer grants D&D a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by the Customer to D&D for the term of this agreement for the purpose of providing the Services to the Customer.
12.1 The parties agree that the Customer is a Controller, and that D&D is a Processor for the purposes of processing Protected Data pursuant to this agreement. The Customer shall at all times comply with all Data Protection Laws in connection with the processing of Protected Data. The Customer shall ensure all instructions given by it to D&D in respect of Protected Data (including the terms of this agreement) shall at all times be in accordance with Data Protection Laws. Nothing in the agreement relieves the Customer of any responsibilities or liabilities under any Data Protection Laws.
12.2 The Customer shall indemnify and keep indemnified D&D against all losses, claims, damages, liabilities, fines, sanctions, interest, penalties, costs, charges, expenses, compensation paid to Data Subjects, demands and legal and other professional costs (calculated on a full indemnity basis and in each case whether or not arising from any investigation by, or imposed by, a supervisory authority) arising out of or in connection with any breach by the Customer of its obligations under clause 12.1.
12.3 D&D shall process Protected Data in compliance with the obligations placed on it under Data Protection Laws and the Privacy Statement.
12.4 D&D shall:
(a) only process (and shall ensure D&D’s Personnel only process) the Protected Data in accordance with their Privacy Statement except to the extent:
(i) that alternative processing instructions are agreed between the parties in writing; or
(ii) otherwise required by applicable law (and shall inform the Customer of that legal requirement before processing, unless applicable law prevents it doing so on important grounds of public interest); and
(b) without prejudice to clause 12.1, if D&D believes that any instruction received by it from the Customer is likely to infringe the Data Protection Laws it shall promptly inform the Customer and be entitled to cease to provide the relevant Services until the parties have agreed appropriate amended instructions which are not infringing.
12.5 The Customer gives its express consent for D&D to:
(a) process the Protected Data in accordance with the terms of this agreement; and
(b) share the Protected Data with those of its sub-processors and/or sub-contractors that D&D deems it necessary for the Protected Data to be provided to for the purposes of D&D and its sub-processors or sub-contractors to perform the Deliverables.
12.6 D&D shall (at the Customer’s cost):
(a) assist the Customer’s in ensuring compliance with the Customer’s obligations pursuant to Articles 32 to 36 of the GDPR (and any similar obligations under applicable Data Protection Laws) taking into account the nature of the processing and the information available to D&D; and
(b) taking into account the nature of the processing, assist the Customer (by appropriate technical and organisational measures), insofar as this is possible, for the fulfilment of the Customer’s obligations to respond to requests for exercising the Data Subjects’ rights under Chapter III of the GDPR (and any similar obligations under applicable Data Protection Laws) in respect of any Protected Data.
12.7 D&D shall not be liable for the failure of its sub-processors or sub-contractors to comply with Data Protection Laws in respect of the Protected Data.
15.1 The extent of the parties’ liability under or in connection with the Business Agreement (regardless of whether such liability arises in tort, contract or in any other way and whether or not caused by negligence or misrepresentation) shall be as set out in this clause 15.
15.2 Subject to clauses 15.4 and 15.5, D&D’s total liability other than as provided in this paragraph, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this agreement shall be limited to the greater of the amount actually received by D&D as a result of any claim made by D&D pursuant to any insurance D&D may have in place in respect of such breach; and the average annual charges (calculated by reference to the charges in successive 12 month periods) from the date of this agreement paid by the Customer under and in any event not exceed the sum of the price paid under the relevant Schedules.
15.3 Subject to 15.5 (Liabilities which cannot legally be limited), this clause 15.3 specifies the types of losses that are excluded:
(a) loss of profits.
(b) loss of sales or business.
(c) loss of agreements or contracts.
(d) loss of anticipated savings.
(e) loss of use or corruption of software, data, or information, including as a result of the Customer’s faulty implementation or operation of D&D recommended backup procedure, viruses and malware or where data is stored on desktop PC’s or laptops.
(f) loss of or damage to goodwill; and
(g) indirect or consequential loss.
(h) loss arising from any Out-of-Control Incident.
(i) loss arising from the Customer’s use of any out-of-date software.
(j) loss arising from any delay resulting from lack of remote access to Your system.
(k) loss arising from viruses and malware.
(l) loss arising from interruptions to Customer’s system during network upgrades or downtime during D&D’s provision of services.
(m) loss arising from user error; and
(n) loss arising from D&D’s engineers’ inability to complete maintenance program checks during scheduled visits as a result of Customer prioritising work that does not allow time for maintenance program checks to be carried out during a scheduled visit.
15.4 The limitations of liability set out in clauses 15.2 to 15.4 shall not apply in respect of any indemnities given by either party under this agreement.
15.5 Notwithstanding any other provision of this agreement, the liability of the parties shall not be limited in any way in respect of the following:
(a) death or personal injury caused by negligence.
(b) fraud or fraudulent misrepresentation.
(c) any other losses which cannot be excluded or limited by applicable law.
(d) any losses caused by wilful misconduct.
15.6 D&D shall have no liability in respect of any IT support provided to the Customer prior to the start of this agreement or provided during this agreement by the Customer’s in-house or any other IT support (where relevant), or in respect of any IT equipment already belonging to the Customer prior to this agreement.
15.7 D&D shall not have any liability where failure to provide the Deliverables or failure of the Customer’s IT Systems is as a result of a failure of third-party hosts, software providers, or D&D’s suppliers to provide their services to D&D or the Customer directly.
15.8 If the Customer has prevented D&D from performing required maintenance and updates, there may be a delay in resolving issues and D&D shall have no liability for any loss incurred as a result of such delays.
15.9 D&D shall have no liability for issues caused to the Customer’s IT System which result from the Customer’s misuse of the IT system or failure to follow D&D’s instructions or recommendations in respect of the use of the system or particular equipment.
15.10 D&D shall have no liability for any loss caused by the Customer making changes to the configuration or set up of equipment, software or Services which are unauthorised by D&D.
15.11 D&D may make recommendations for configuration, implementation, or upgrade of new or existing products to ensure the Customer meets security best practices. The Customer must pay for this work, unless included in this agreement. If the Customer rejects these suggestions, the Customer agrees to sign a liability waiver in which they accept the risks in not following the advice.
15.12 Nothing in this clause 15 shall limit the Customer’s payment obligations under the Business Agreement or these Terms.
15.13 D&D has given commitments as to compliance of the Services with relevant specifications in clause 4 of these Terms. In view of these commitments, the terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from these terms and conditions.
15.14 This clause 15 shall survive termination of this agreement.
16.1 The Business Agreement shall start on the Commencement Date and remain in force for the Contract Period as set out in the Business Agreement. The Inclusive Services shall be reviewed annually to address any necessary adjustments or modifications which must be mutually agreed. Should adjustments or modifications be required that increase the monthly fees paid for the services rendered under this agreement, these increases will be discussed and adjusted accordingly.
This Business Agreement shall automatically renew for further and repeated periods of one year unless terminated by the Customer in writing no less than 90 (ninety) days prior to the end of its current Term.
16.2 Without affecting any other right or remedy available to it, either party may terminate the Business Agreement by giving the other party three months’ written notice. In the event that the Customer elects to terminate the Business Agreement pursuant to this clause 16.2, D&D retain the right to charge a fee for terminating this agreement (Termination Fee), such fee to be equal to the amount that would be payable to D&D for the unexpired amount of the Contract Period to be payable prior to termination of the Business Agreement.
16.3 Without affecting any other right or remedy available to it, either party may terminate the agreement with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of any term of the agreement and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing to do so.
(b) the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business;
(c) the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
(d) the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under this agreement has been placed in jeopardy.
16.4 Without affecting any other right or remedy available to it, D&D may terminate this agreement with immediate effect by giving written notice to the Customer if:
(a) the Customer fails to pay any amount due under this agreement on the due date for payment; or
(b) there is a change of control of the Customer.
16.5 Without affecting any other right or remedy available to it, D&D may suspend the supply of Services under this agreement or any other contract between the Customer and D&D if:
(a) the Customer fails to pay any amount due under this agreement on the due date for payment.
(b) the Customer becomes subject to any of the events listed in clause 16.3(c) or clause 16.3(d), or D&D reasonably believes that the Customer is about to become subject to any of them; and
(c) D&D reasonably believes that the Customer is about to become subject to any of the events listed in clause 16.3(b).
16.6 Without prejudice to any other rights or remedies which either party may have, in relation to a Contract for the supply of Equipment or an Installation, either party may terminate the Contract in respect of the supply of Equipment by giving not less than 5 Business Days written notice to the other, served in accordance with clause 19.8.
16.7 Where notice is given by the Customer and the Contract is terminated in respect of the supply of Equipment in accordance with clause 16.6, D&D shall be entitled to charge and shall invoice the Customer a restocking fee (such invoice to be immediately due and payable). The restocking fee will be based on the Equipment charges and is dependant on the type of Equipment:
16.7.1 Equipment built to order – 100% of Equipment charges.
16.7.2 All other Equipment – 25% of the Equipment charges or the value of the third- party charges incurred by D&D, whichever is greater.
17.1 On termination or expiry of the Business Agreement, whether pursuant to clause 16.3 or pursuant to clause 16.4:
(a) the Customer shall immediately pay to D&D all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Services supplied and to be supplied for the remainder of the Contract Period but for which no invoice has been submitted, D&D shall submit an invoice, which shall be payable by the Customer immediately on receipt.
(b) the Customer shall return all of the D&D Materials and any Deliverables which have not been fully paid for. If the Customer fails to do so, then D&D may enter the Customer’s premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this agreement.
17.2 Termination or expiry of the Business Agreement shall not affect any rights, remedies, obligations, or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of this agreement which existed at or before the date of termination or expiry.
17.3 Any provision of these Terms that expressly or by implication is intended to come into or continue in force on or after termination or expiry of these Terms shall remain in full force and effect.
18.1 The Customer shall not, without D&D’s prior written consent, at any time from the Business Agreement Commencement Date until the expiry of 24 months after termination or expiry of this agreement, solicit or entice away from D&D or employ or attempt to employ any person who is, or has been, engaged as an employee with D&D.
18.2 The event the Customer breaches the restriction set out in clause 18.1 and employs or engages an employee or sub-contractor of D&D, the Customer shall indemnify D&D on a full indemnity basis and hold D&D harmless against all costs, losses and charges including professional fees of replacing such employee or sub-contractor.
19.1 Force majeure. Neither party shall be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control.
19.2 Assignment and other dealings.
(a) D&D may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under this agreement.
(b) The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under this agreement without the prior written consent of the Supplier.
19.3 Confidentiality.
(a) Each party undertakes that it shall not at any time during the Business Agreement, and for a period of two years after termination or expiry of the Business Agreement, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 19.3(b).
(b) Each party may disclose the other party’s confidential information:
(i) to its employees, officers, representatives, contractors, subcontractors, or advisers who need to know such information for the purposes of carrying out the party’s obligations under this agreement. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 19.3; and
(ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
(c) Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under this agreement.
19.4 Entire agreement.
(a) These Terms together with the Contract and/or Business Agreement constitute 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.
(b) Each party acknowledges that in entering into the Business Agreement or a Contract that 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 these Terms. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in these Terms.
(c) Nothing in this clause shall limit or exclude any liability for fraud.
19.5 Variation. Except as set out in these Terms, no variation of these Terms shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
19.6 Waiver. A waiver of any right or remedy under this agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under this agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.
19.7 Severance. If any provision or part-provision of the Contract or these Terms 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 the Terms or the Contract. If any provision or part-provision of the Terms or the Contract deleted under this clause 19.7 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.
19.8 Notices.
(a) Any notice given to a party under or in connection with the Contract or the Business Agreement or these Terms shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case).
(b) Any notice shall be deemed to have been received:
(i) if delivered by hand, at the time the notice is left at the proper address; or
(ii) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting.
(c) This clause 19.8 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
19.9 Third party rights.
(a) Unless it expressly states otherwise, this agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of these Terms.
(b) The rights of the parties to rescind or vary these Terms are not subject to the consent of any other person.
19.10 Governing law. The Business Agreement, a Contract and these Terms, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or these or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
19.11 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Business Agreement, a Contract or these Terms or its subject matter or formation
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