Terms & Conditions

For the Supply of Support Services

Version 2.0 · TheLogic Limited, Munro House, Quarrywood Court, Livingston, EH54 6AX · Registered in Scotland No. SC280224

1. Definitions

1.1 In these terms and conditions for the supply of support services ("these Conditions") the following words and expressions shall bear the meanings given to them below (unless the context otherwise requires):

1.2.0 The Schedules form part of these Conditions.

1.2.1 In these Conditions, reference to any statute or statutory provision shall include a reference to any statute or statutory provision which amends, extends, consolidates or replaces the same or which has been amended, extended, consolidated or replaced by the same and shall include any orders, regulations, instruments or other subordinate legislation made under the relevant statute or statutory provision.

1.2.2 In these Conditions, the singular includes the plural and the masculine includes the feminine and vice versa.

1.2.3 In these Conditions, references to persons shall include bodies corporate, unincorporated associations and partnerships.

1.2.4 In these Conditions, references to any Clause, Sub-Clause or Schedule are references to Clauses, Sub-Clauses or Schedules to these Conditions.

1.2.5 In these Conditions, the headings to Clauses are for convenience only and shall not affect the interpretation of these Conditions.

1.2.6 Reference to any party in these Conditions shall be deemed to include a reference to its successors, permitted transferees and permitted assignees.

1.2.7 Nothing in these Conditions shall confer or be construed as conferring any rights on any third party.

1.2.8 In these Conditions a reference to a communication being “in writing” or similar expression means any communication, handwritten or typed and hand delivered or sent by post, facsimile, courier or e-mail or any comparable method of communication, and reference to a document being “signed” or similar expression means signed in any way recognized by law which may include electronic or digital signature.

2. Term

2.1 Subject to the terms of these Conditions, the Agreement shall commence on the Commencement Date and shall continue in force thereafter for the Initial Term and thereafter from year to year subject (at any time) to: (i) earlier termination in accordance with the terms of these Conditions; or (ii) service of notice in accordance with Clause 2.2.

2.2 Either party may terminate the Agreement at any time upon giving the other party three months’ prior notice in writing.

2.3 Should the Client elect to terminate the Agreement during the Initial Term, other than in accordance with clause 8.1, the Client agrees to pay the equivalent of 25% of the remaining contract fee or the balance of Charges falling due in respect of the balance remaining of the Initial Term (whichever is lower) to the Company upon a written request from the Company to that effect.

2.4 The Agreement shall be constituted upon the execution by the Company and the Client of the Managed Services Agreement.

3. The Services

3.1 During the term of the Managed Services Agreement, the Company will provide the Support Services and the Client will take and pay for the Support Services. The Support Services will be provided in accordance with the Managed Services Agreement.

3.2 The Company’s obligation to provide Support Services shall extend to that defined in the Managed Services Agreement.

3.3 The Company warrants to the Client that the Support Services will be provided using reasonable care and skill and in accordance with relevant industry standards from time to time.

3.4 The Client shall provide the Company, its employees, agents, consultants and subcontractors with access to the Premises and/or office accommodation and other facilities as reasonably required by the Company from time to time in order for the Company to provide the Support Services.

3.5 The Client shall ensure that all of its equipment and hardware is maintained in good working order and adequately insured at all times.

3.6 The Client shall co-operate generally with the Company at all times when the Company is providing the Support Services.

3.7 The Client shall inform the Company as soon as reasonably practicable of any irregularities or issues in, or any material observations of the Client regarding, the Client’s IT equipment set out in the Managed Services Agreement.

3.8 The Client undertakes to use the IT equipment set out in the Managed Services Agreement in accordance with the manufacturer’s instructions at all times during the term of the Agreement.

4. Payment

4.1 In consideration of the Support Services provided by the Company to the Client, the Client shall pay the Charges.

4.2 The Charges shall be invoiced by the Company to the Client and paid by the Client to the Company in accordance with the invoicing and payment terms as set out in the Managed Services Agreement.

4.3 All Charges relating to: (i) the Client’s purchase of any hardware and/or software from the Company; and (ii) the set up costs of any such hardware and/or software, shall be due for payment by the Client within 30 days of the date of issue of the relevant invoice.

4.4 All cash sums paid by the Client under the Agreement are exclusive of Value Added Tax and any other Government taxes and levies.

4.5 All hardware and software supplied by the Company shall remain the property of the Company until it has been paid for in full by the Client.

4.6 All proper and reasonable expenses incurred by the Company from time to time in the performance of the Support Services will be charged at cost to the Client.

4.7 If any sum payable to the Company in accordance with the Agreement remains outstanding for more than 30 days from the due date of payment, the Company reserves the right, without prejudice to any other right or remedy, to charge interest on such overdue sum on a day to day basis from the original due date of payment until paid in full at a rate of 8% per annum above The Royal Bank of Scotland plc base lending rate in force from time to time, whether before or after any judgement.

4.8 If any sum payable to the Company remains outstanding in accordance with Clause 4.7, the Company shall be entitled to refrain from carrying out the Support Services (or any part thereof) until such sums and any interest payable is paid in full by the Client.

4.9 Notwithstanding termination of the Agreement, the Client shall remain fully liable to discharge any costs and expenses incurred by the Company on behalf of the Client up to the relevant termination date and any loss or damage suffered by the Company as a result of such termination.

5. Indemnity / Liability

5.1 This Clause 5 prevails over all other Clauses of the Agreement and sets forth the entire liability of the Company to the Client under or pursuant to the Agreement.

5.2 Nothing in the Agreement shall exclude or limit the Company’s liability for death or personal injury or any liability which cannot be excluded or limited by law.

5.3 Save as provided in Clause 5.2, but subject to Clauses 5.4 and 5.5, the Company does not accept and hereby excludes any liability for loss or damage to the Client’s tangible property other than caused by the Company’s negligence.

5.4 Save as provided in Clause 5.2, the Company shall have no liability to the Client for any of the Losses or damage (whether such losses or damage were foreseen, foreseeable, known or otherwise) or any indirect, incidental, special, consequential loss or damage to the Client or any third party arising from the Support Services whether arising from the negligence of the Company or otherwise.

5.5 Save as provided in Clause 5.2, the Company’s maximum and aggregate liability for any loss or damage arising out of or in connection with the Agreement, howsoever arising, shall not exceed the level of the Company’s insurance policies in place from time to time or 100% of the total aggregate Charges actually paid to the Company by the Client in any Year in accordance with the Agreement, whichever of these sums is lower.

6. Confidential Information

6.1 The Recipient will keep confidential all the Confidential Information it obtains from the Discloser (even after the expiry or termination of the Agreement) and will not disclose that Confidential Information to any third party except to those of its employees and/or contractors who need to know that Confidential Information in connection with the performance of any obligation under the Agreement, and will procure from its employees and/or contractors enforceable undertakings in terms at least as binding upon said employees and/or contractors as the Recipient is bound to the Discloser hereunder.

6.2 The obligations of confidentiality under this Clause 6 will not apply to Confidential Information which:

• a. was already known to or lawfully in the possession of the Recipient prior to obtaining the Confidential Information from the Discloser;
• b. was subsequently disclosed to the Recipient lawfully by a third party who did not obtain it from the Discloser;
• c. was in the public domain at the time that it was obtained from the Discloser, or it subsequently entered the public domain otherwise than as a result of a breach of the Agreement or other obligation of confidence owed by the Recipient or its employees; or
• d. the Discloser has provided its prior consent in respect of.

6.3 The Recipient may disclose any Confidential Information where that disclosure is required by a court of law, or by any governmental or regulatory authority, provided that the Recipient gives notice to the Discloser of that disclosure.

6.4 The Company hereby agrees that it will use Confidential Information and any Personal Data solely for the purposes of the Agreement.

7. Data Protection

Where the Client passes to the Company, or otherwise gives the Company access to, Personal Data under the Agreement:

7.1 Clauses 7.2 – 7.7 shall apply if the Company processes any Personal Data on the Client’s behalf where the Client is acting as a Controller in respect of that Personal Data, or where the Company is acting as a sub-processor in respect of Personal Data belonging to the Client of the Client. Nothing in this agreement relieves the Company of its own direct responsibilities and liabilities under Data Protection Law.

7.2 Each party acknowledges that:

7.2.1 the subject matter and purpose of the processing is to provide the Support Services;

7.2.2 the processing shall continue, subject to Condition 7.3.6, for the duration of this Agreement; and

7.2.3 the processing concerns the following categories of data subjects: employees and clients of the Client and employees and customers of the Client.

7.3 The Company shall:

7.3.1 process the Personal Data only to the extent necessary for the purposes of performing its obligations under this Agreement in accordance with Good Industry Practice and otherwise in accordance with the documented instructions of the Client and applicable laws;

7.3.2 not process the Personal Data in any country outside the European Economic Area without the prior written consent of the Client. If the Company is required by applicable laws to transfer the personal data outside of the European Economic Area, the Company shall inform the Client of such requirement before making the transfer (unless the Company is barred from making such notification under the relevant applicable law). If, at any time, the United Kingdom is not in the EEA, the Company may transfer any Personal Data to the United Kingdom provided that the United Kingdom has been deemed an adequately protective jurisdiction for the purposes of the applicable Data Protection Law, and until and unless the United Kingdom has been deemed adequately protective, the Company shall only transfer Personal Data to or process such data in the United Kingdom provided it enters into all further terms (whether with the Client or any other party) and completes, maintains and implements (as applicable) all other actions, measures and safeguards as required to ensure that such transfers and processing do not breach the obligations of the Company or the Client under Data Protection Law;

7.3.3 ensure that all persons authorised by it to process the Personal Data are subject to appropriate duties of confidentiality;

7.3.4 have at all times during the term of this Agreement appropriate technical and organisational measures in place to protect any Personal Data against unauthorised or unlawful processing and against accidental loss, alteration, destruction or damage;

7.3.5 subject to Condition 7.4, not engage another Processor of the Personal Data without the prior written authorisation of the Client, and where the Company does engage another Processor, the same information and obligations as are set out in Conditions 7.2 – 7.3 shall be imposed by the Company on the other Processor in a contract, and the Company shall remain fully liable for the acts and omissions of such other Processors. Any sub-Processor or categories of sub-Processor shall be deemed to have been approved as Processors for the purposes of this clause;

7.3.6 cease processing the Personal Data immediately upon the termination or expiry of this Agreement or, if sooner, on cessation of the contractual activity to which it relates and, at the Client’s election, delete or return all Personal Data to the Client, and delete all existing copies unless applicable law requires their retention;

7.3.7 make available to the Client all information reasonably necessary to demonstrate compliance with the obligations set out in this clause, and allow for and contribute to audits, including inspections, conducted by the Client or its representative;

7.3.8 at the earliest opportunity and in any event within 24 hours after having become aware, notify the Client of any unauthorised or unlawful processing of any of the Personal Data to which this Condition 7 applies and of any loss or destruction or other damage, and shall take such steps consistent with Good Industry Practice to mitigate the detrimental effects of any such incident on the Data Subjects and co-operate with the Client in dealing with such incident and its consequences; and

7.3.9 indemnify on demand, defend and hold harmless the Client against all loss, liability, damages, costs (including legal costs), fees, claims and expenses which the Client may incur or suffer by reason of any breach of Condition 7.3 by the Company.

7.4 Where the Company adds or replaces other Processors, it shall first inform the Client of the intended change and shall not add or replace such other Processor until the Client has given its approval to the proposal.

7.5 The Company acknowledges that the Client and its Client(s) are under certain record keeping obligations under the Data Protection Law, and agrees to provide the Client and its Client(s) with all reasonable assistance and information required to satisfy such record keeping obligations.

7.6 The Company will allow the following to audit, obtain information from, inspect the records (including electronic records) of, or enter the premises of the Company in relation to any services provided under this Agreement by the Company to the Client (but not the data of any of the Company’s other customers):

7.6.1 a Regulator (including the appointed agent of a Regulator);

7.6.2 the Client (including the appointed agent of the Client).

7.7 The Company shall promptly provide such information and assistance as the Client, or its Client(s), may require in relation to any request from or on behalf of any Data Subject for access, rectification or erasure of Personal Data, or any complaint, objection to processing, or other correspondence. In no event shall the Company respond directly to any such request, complaint or correspondence without the Client’s prior written consent unless and to the extent required by law.

8. Termination

8.1 Either party will have the right to terminate the Agreement if the other party:

• a. commits any material breach of the Agreement and (in the case of a breach which is not persistent and can be remedied) has failed, within 30 days after receipt of a request in writing to do so, to remedy the breach, declaring that the Company will not be in material breach by virtue of failing to meet any deadline for any work or services to be provided pursuant to the Agreement; or
• b. has a receiver or administrative receiver appointed to it or over any part of its business or assets, or passes a resolution for winding up (except for the purposes of a genuine scheme of solvent amalgamation or reconstruction) or a court of competent jurisdiction makes an order to that effect, or it becomes subject to an administration order or enters into any voluntary arrangement with its creditors, or it ceases or threatens to cease to carry on business.

8.2 Subject to clause 8.5, each party will ensure that its directors, employees, contractors, consultants or agents will, upon the termination of the Agreement, immediately deliver up to the other party all correspondence, documents, papers and property (in whatever media) belonging to the other party which may be in its or their possession or under its or their control.

8.3 On termination of the Agreement for any reason the Client shall return to the Company all of the hardware and/or software supplied by the Company under the Agreement which have not been fully paid for. If the Client fails to do so, then the Company may enter the Client’s premises and take possession of them. Until the hardware and/or software has been returned, the Client shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Agreement.

8.4 Termination of the Agreement for any reason shall not bring to an end the secrecy and/or confidentiality obligations of the parties hereto, nor shall it affect the Client’s responsibility to pay any outstanding invoices or any other monies owing to the Company, including any interest and/or charges.

8.5 Subject to payment of all outstanding amounts owed by the Client to the Company, the Company will, upon the termination of the Agreement, release all network documentation and passwords which the Company holds in relation to the Client’s IT equipment and/or software.

9. Review Meetings and Reports

9.1 The Company will supply the Client with reports on a quarterly basis (if requested by the Client) which outline the Company’s performance against the service levels in the Agreement.

9.2 The Company and the Client shall meet regularly no less than quarterly at such place to be agreed by the parties to discuss any relevant matters relating to the provisions of the Support Services.

10. Variation to Services

Any request to vary the Support Services or any other provisions of the Agreement shall be put in writing by the Client to the Company (the “Variation Request”). The Company shall, as soon as reasonably practicable, advise if the Variation Request is acceptable to the Company, by which date the variation will be affected, and the Client shall be advised of any impact of the Variation Request on the Charges.

11. Non-Solicitation

11.1 From the Commencement Date until the period of twelve months following termination or expiry of the Agreement (the “Restricted Period”) the Client will not solicit for employment any member (employee) of the Company’s staff who was involved with the performance of the Company’s obligations under the Agreement at any time during the Restricted Period.

11.2 If the Client is in breach of Clause 11.1, the Company, in addition to any other remedies available under the Agreement or at law, shall be entitled to recover from the Client £100,000 or 3 times the annual salary of the person whose employment has been solicited (when employed by the Client), whichever is the greater.

11.3 The parties agree that the restriction set out in Clause 11.1 is reasonable in the circumstances and has been negotiated in good faith by the parties.

12. Notices

All notices to be given under the Agreement must be in writing and sent to the address of the recipient set out in the Agreement, or any other address which the recipient may notify to the other party in writing. Any notice may be delivered by hand personally or sent by first class prepaid letter (within the United Kingdom) or airmail (if overseas) or by facsimile and will be treated as served: if by hand, when delivered; if by first class post, 48 hours after posting; if by airmail, 6 business days after posting; and if by facsimile, when despatched, provided the sender’s fax machine produces automatic confirmation of error free transmission to the recipient’s fax number.

13. Force Majeure

Neither party shall be liable for any delay in performing any of its obligations under the Agreement if such a delay is caused by circumstances beyond the reasonable control of the party so delaying, and such party shall be entitled to a reasonable extension of time for the performance of such obligations. Such delay shall not constitute a breach of the Agreement, provided however that if such delay continues for a period in excess of 60 days, the party not in delay shall be entitled to terminate the Agreement forthwith on written notice to the other party.

14. Security

The Company will secure those of the Client’s servers set out in Schedule 2 (if exists) only (the “Managed Servers”) conforming to Microsoft security standards from time to time. If any further data security work is required by the Client in relation to the Managed Servers, then this will be discussed with the Client and delivered by the Company for no additional charge.

15. General

15.1 The Agreement supersedes all prior agreements, arrangements, warranties and understandings between the parties with regard to its subject matter and constitutes the entire agreement and understanding between the parties relating to the supply of the Support Services. Any modification or variation to the terms of the Agreement shall only be valid if it is made in writing and signed by the Client and the Company or their duly authorised representatives.

15.2 The Client hereby waives any and all existing and future claims and set-offs against any instalment, charge or other payment due hereunder and agrees to pay the Charges and other amounts due hereunder regardless of any set-off or cross-claim the Client may have against the Company.

15.3 Each party to the Agreement is an independent contractor, and the Agreement does not create a partnership, agency, joint venture or employment relationship between the Company and the Client.

15.4 No delay or failure by any party in exercising or enforcing any of its rights or remedies under the Agreement will prejudice or restrict its rights, nor will any waiver of rights operate as a waiver of subsequent rights.

15.5 In the event that any Clause of the Agreement is held to be invalid by an authority having jurisdiction over the Agreement, that Clause may be deleted from the Agreement and the remaining Clauses shall continue to be, to the extent that they are unaffected by the deletion, valid and binding on the parties hereto.

15.6 Except as required by law or in accordance with the provisions of the Agreement, no announcement or disclosure or circular concerning or in connection with the existence of the subject matter of the Agreement shall be made or issued by either party without the prior written consent of the other party.

15.7 The Client shall not assign any right and/or obligation under the Agreement without the prior written consent of the Company.

15.8 The Company may freely assign and/or subcontract any and/or all of its rights and/or obligations under the Agreement.

16. Law and Jurisdiction

The Agreement shall be governed by and construed in all respects in accordance with Scots law and the parties submit to the exclusive jurisdiction of the Scottish courts.