ADEPT COMMUNICATIONS AND TECHNOLOGY LIMITED – Standard Terms and Conditions for Managed Services (the ‘Terms’)

1.      Agreed terms

• Definitions and Interpretation

1. Agreement: means a contract formed under these Terms and incorporating the related Order Form.
2. Acceptance Date: has the meaning given in 3.5.
3. Assets: any Customer-site Equipment, Software or Intellectual Property Rights used by ADEPT CTS exclusively for the delivery of the Managed Services to the Customer.
4. Business Day: a day, other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
5. Confidential Information: shall have the meaning given to that term in 13.1.
6. Customer: means the party identified as such in the Order Form.
7. Customer Data: any information that is provided by or on behalf of the Customer to ADEPT CTS as part of the Customer’s use of the Services, including any information derived from such information.
8. Customer Personal Data: any personal data comprised in the Customer Data.
9. Customer Site: any premises occupied by the Customer at which it receives the Managed Services.
10. Customer-site Equipment: any equipment located or to be located on a Customer Site but controlled or to be controlled exclusively by ADEPT CTS as part of the Managed Services, but excluding the Hardware.
11. Customer’s Operating Environment: the Customer’s computing environment (consisting of hardware, software and telecommunications networks) that is to be used by the Customer in connection with its use of the Services and which interfaces with ADEPT CTS’s System in order for the Customer to receive the Services, but excluding the Customer-site Equipment.
12. Customer Software: has the meaning given to that term in the definition of Software.
13. Data Processing Addendum: means ADEPT CTS’s Data Processing Addendum as made available ADEPT CTS’s System
14. Effective Date: the date the Order Form is signed by the Customer or Customer otherwise accepts performance in accordance with clause 2.2.
15. Error: has the meaning given in 3.3.
16. Extended Term: has the meaning given in 15.1.
17. Fees: the fees payable to ADEPT CTS, as described in the Order Form
18. ADEPT CTS: Means ADEPT COMMUNICATIONS AND TECHNOLOGY LIMITED incorporated and registered in England and Wales with company number 04901558 whose registered office is at 7, Admiral Way, Keighley, Bradford, BD21 3LN.
19. ADEPT CTS Software: has the meaning given to that term in the definition of Software.
20. ADEPT CTS’s System: the information and communications technology system to be used by ADEPT CTS (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.
21. Force Majeure Event: means an event which is beyond the reasonable control of the party seeking to rely on such event, including act of God, war, future pandemics and epidemics, riot, civil commotion, compliance with any law or governmental order, rule, regulation or direction, flood or storm, save that strike or lockout of the party’s own staff shall not entitle them to claim that to be a force majeure event
22. 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 Support Policy, the term, the pricing structure and any other relevant factors.
23. Hardware: all physical telecommunications, networking and computer equipment (including switches, routers, cables, servers, racks, cabinets and peripheral accessories) provided by ADEPT CTS (or any of its sub-contractors) and used by the Customer to receive any of the Services (which may also be purchased in accordance with ADEPT CTS’s Sale of Hardware Standard Terms and Conditions).
24. Incident: any Vulnerability, Virus or security incident which:
    1. may affect the Assets;
    2. may affect ADEPT CTS’s network and information systems such that it could potentially affect the Customer or the Assets; or
    3. is reported to ADEPT CTS by the Customer.
25. Initial Term: the initial Agreement period as specified in the Order Form.
26. Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, 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.
27. Maintenance: any error corrections, updates and upgrades that ADEPT CTS 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 the Agreement, all as described in the Support Policy.
28. Managed Services: the service described in the Managed Services Specification to be performed by ADEPT CTS in accordance with the Agreement.
29. Managed Services Specification: the specification for the Managed Services as contained in the Order Form or Schedule 1.
30. Normal Business Hours: the period from 9.00 am to 5.00 pm on any Business Day.
31. Operating Requirements: the operating requirements in relation to the Managed Services, the Hardware and the Software as set out in Schedule 3.
32. Order Form: means the order form detailing the Services purchased by the Customer under an Agreement (and any equipment purchased under ADEPT CTS’s Terms and Conditions for the Sale of Equipment).
33. Professional Services: the consultancy and professional services to be provided by ADEPT CTS as specified in the Order Form.
34. Support Policy: the Support Policy setting out the additional Service specification, service levels and maintenance, as set out in Schedule 2.
35. Services: the Managed Services and the Professional Services as specified in the Order Form, as well as any and Maintenance performed.
36. Software: any software used by ADEPT CTS (or any of its sub-contractors) to provide the Managed Services to the Customer whether owned by a third party (being Third Party Software), by the Customer (being Customer Software) or by ADEPT CTS (being ADEPT CTS Software).
37. Third Party Software: has the meaning given to that term in the definition of Software.
38. VAT: value added tax imposed by the Value Added Tax Act 1994 or any similar tax chargeable in the UK or elsewhere.
39. 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, audiovisual 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 ADEPT CTS (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 ADEPT CTS (or any of its sub-contractors) for the Customer, including any and all Intellectual Property Rights therein.
    • A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
    • A reference to a statute or statutory provision is a reference to it as amended, extended, consolidated, replaced, superseded, re-enacted or otherwise converted, modified or incorporated into law from time to time.
    • A reference to writing or written includes email but excludes fax.
    • Any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.
    • The Schedules form part of these Terms. Any reference to the Agreement includes the Schedules. If there is an inconsistency between any of the provisions of these Terms and the schedules, the provisions in the Terms shall prevail.

2.      Orders and Contract Formation

• The Customer will be provided with an Order Form in digital format for acceptance by electronic signature. Such Order Form shall constitute an offer capable of acceptance by the Customer for a period of 20 Business Days, after which it will no longer be valid.
• On signature of the Order Form by the Customer, or if the Customer otherwise accepts performance of the Services, an Agreement will be formed under these Terms and both parties will be bound for the Initial Term

3. Implementation
   • ADEPT CTS shall appoint a nominated representative who shall be point of contact and representative for the Managed Services.
   • ADEPT CTS shall use reasonable endeavours to perform any agreed implementation of Managed Services in accordance with any timetable set out in the Order Form or otherwise in writing, but any such timetable and dates shall be estimates only, and time shall not be of the essence in the Agreement.
   • When ADEPT CTS considers that the Managed Services are ready for activation it shall so notify the Customer. Within five 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 ADEPT CTS a detailed description of any such non-conformance (Error) in writing, within such five Business Day review period.
   • ADEPT CTS shall use reasonable endeavours to correct any Error within a reasonable time and, on completion, notify the Customer that the Managed Services are ready for activation. The provisions of 3.3 and this 3.4 shall then apply again, up to three additional times. If ADEPT CTS is unable to correct the Error after three attempts, or if during the provision of the implementation Services it becomes apparent that the scale, scope and cost of delivering the Managed Services has changed materially, either party may terminate the Agreement with immediate effect by giving written notice to the other party, without further liability to the other (except such fees due in respect of the implementation Services shall be payable in full).
   • If the Managed Services are found to conform with the Managed Services Specification or if the Customer does not provide any notification of Errors within the five Business Day review period described in 3.3, the Managed Services shall be deemed accepted by the Customer as from the date of the notification that the Managed Services conform or expiry of such five Business Day review period without notification of any Errors (in each case the Acceptance Date).
4. Service Provision
   • ADEPT CTS shall provide the Managed Services from the Acceptance Date until expiry of the Initial Term or termination of the Agreement for any reason.
   • The Support Policy shall apply with effect from the start of the first complete calendar month commencing after the Acceptance Date.
   • The Customer shall not store, distribute or transmit through the Managed Services any material that:
     • is unlawful, harmful, threatening, defamatory, obscene, harassing or racially or ethnically offensive;
     • facilitates illegal activity;
     • depicts sexually explicit images; and/or
     • promotes unlawful violence, discrimination based on race, gender, age, disability, sexual orientation, religion, belief or gender reassignment, or any other illegal activity.
   • The Customer shall remain responsible for the use of the Managed Services under its control, including by its users and any use by third parties (whether fraudulent or invited by the Customer).
   • The Customer must take reasonable measures to ensure it does not jeopardise services supplied to third parties on the same shared access infrastructure. This includes informing ADEPT CTS promptly in the case of a denial-of-service attack or distributed denial-of-service attack. In the event of any such incident, ADEPT CTS shall work with the Customer to alleviate the situation as quickly as possible. The parties shall discuss and agree appropriate action (including suspending the Managed Services in whole or in part).
   • The Customer shall not provide the Managed Services directly or indirectly to third parties.
   • ADEPT CTS reserves the right, in its absolute discretion, to:
     • modify ADEPT CTS’s System, its network, system configurations or routing configuration; or
     • modify or replace any Hardware or Software in its network or in equipment used to deliver any Service over its network, provided and to the extent that this has no adverse effect on ADEPT CTS’s ability to perform its obligations under the Agreement and its provision of the Services or the Support Policy. If such changes will have an adverse effect, ADEPT CTS shall notify the Customer and the parties shall implement any necessary changes to the Managed Services through the Change Control Procedure.

5.      Data Protection

• The parties will comply with their data protection obligations as set out in Data Processing Addendum.

6.      ADEPT CTS Obligations

• ADEPT CTS undertakes that the Services will be performed with all reasonable skill and care and in accordance with the provisions of the Agreement and Support Policy, and that the Managed Services will be provided substantially in accordance with the Managed Services Specification.
• The undertaking in 6.1 shall not apply:
  • to the extent of any non-conformance that is caused by use of the Managed Services contrary to ADEPT CTS’s instructions, including as set out in the Agreement; or
  • to elements of the Services which have been subcontracted to third parties, for which ADEPT CTS undertakes to ensure performance of the subcontracted Services in accordance with such third parties support policy, service level agreement or equivalent document, the details of which are available from ADEPT CTS on request.
• If the Services do not conform with the undertaking in 6.1, ADEPT CTS 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 6.1.
• Notwithstanding the foregoing, ADEPT CTS does not warrant that:
  • the Customer’s use of the Managed Services shall be uninterrupted or error-free; or
  • the Managed Services will ensure the Customer’s Operating Environment is free from Incidents, viruses or other malware.

7.      Security

• ADEPT CTS shall ensure at all times that appropriate safety and security systems, policies and procedures are maintained and enforced to prevent unauthorised access or damage to, and to ensure the business continuity of, any and all Services, ADEPT CTS’s System and related networks or resources and the Customer Data, in accordance with Good Industry Practice, including an incident management process which shall enable ADEPT CTS, as a minimum, to discover and assess Incidents, and to prioritise those Incidents, sufficient to meet its reporting obligations under the Support Policy.
• Each Party shall promptly inform the other if it suspects or uncovers any breach of security, and shall use all commercially reasonable endeavours to promptly remedy such breach. ADEPT CTS shall promptly notify the Customer in writing of any actual or suspected loss or damage to the Customer Data. In the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy shall be for ADEPT CTS to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest backup of such Customer Data. ADEPT CTS shall not be responsible for any loss, destruction, alteration or unauthorised access to or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by ADEPT CTS to perform services related to Customer Data maintenance and back-up).

8.      Customers Obligations

• The Customer shall:
  • provide ADEPT CTS with:
    • all necessary co-operation in relation to the Agreement; and
    • all necessary access to such information as may be reasonably required by ADEPT CTS, 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;
  • provide such personnel assistance, as may be reasonably requested by ADEPT CTS from time to time.
  • obtain and maintain domain names and 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);
  • comply with the Operating Requirements to enable ADEPT CTS to provide the Services to the Customer;
  • comply with all applicable law and regulations with respect to its activities under the Agreement;
  • carry out all other Customer responsibilities and obligations set out in the Agreement (including the Project Plan) 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 or performance of the Customer’s responsibilities and obligations, ADEPT CTS may adjust any timetable or delivery schedule set out in the Agreement as reasonably necessary and if ADEPT CTS incurs additional costs to avoid or mitigate the effects of Customer’s failure or delay in providing such assistance or performance of its responsibilities and obligations, ADEPT CTS shall be entitled to make an equitable adjustment to the Fees (or a combination of the two as appropriate). The starting basis for determining the equitable adjustment to the Fees for the purposes of this 8.1(f) shall be ADEPT CTS’s reasonable increased costs to the extent the same cannot be Mitigated;
  • (for procurement of Microsoft products only) adhere and agree to the Microsoft Customer Agreement (“Microsoft Customer Agreement”), which is a direct agreement between Client and Microsoft and is a condition of Cloud Solution Provider Program that the Client enters into the Agreement, the terms of which are found at https://www.microsoft.com/licensing/docs/customeragreement and which may be updated from time to time;
  • where a Microsoft Cloud service is deployed / utilised within the project (Azure, Enterprise Mobility Suite or Microsoft 365) the Supplier will be assigned to the cloud subscription(s) as the Digital Partner of Record (DPOR) and/or Claiming Partner of Record (CPOR) and/or Transacting Partner of Record (TPOR) and/or Partner Admin Link (PAL) and/or given Delegated Administration Privileges (DAP) 4 and/or Granular Delegated Admin Privileges (GDAP) and Admin on Behalf of (AOBO) for a minimum of twelve (12) months from project completion date; and
  • in respect of any Microsoft funded services (if applicable), sign and deliver the Microsoft Proof of Execution (“POE”) within 168 hours of the date of issue by Microsoft. In the event that the Client does not return the POE within the 168 hours’ notice period, ADEPT CTS may be entitled to charge the Client the amounts directly and the Client shall follow the payment terms in this Agreement.

9.      Warranties

• The Customer warrants and represents that:
  • it has the full capacity and authority to enter into and perform the Agreement and that the Agreement is executed by a duly authorised representative of the Customer;
  • it has the authority to grant any rights to be granted by the Customer to ADEPT CTS under the Agreement, (including the right to transfer the Assets to ADEPT CTS as indicated in, and in accordance with, the Agreement) and for the same to be used in the provision of the Services and otherwise in connection with the Agreement; and
  • it owns or has obtained valid licences, consents, permissions and rights to use and where necessary to license to ADEPT CTS, any materials reasonably necessary for the fulfilment of all the Customer’s obligations under the Agreement, including any third-party licences and consents in respect of any Customer Software.
• The Customer warrants that:
  • it shall comply with all laws and regulations applicable to the Customer in performing its obligations, or receiving the Services, under the Agreement; and
  • ADEPT CTS’s possession and use in accordance with the Agreement of any materials (including third-party materials) supplied by the Customer to ADEPT CTS shall not cause ADEPT CTS to infringe the rights, including any Intellectual Property Rights, of any third party.
• ADEPT CTS warrants and represents that:
  • it has the full capacity and authority to enter into and perform the Agreement and that the Agreement is executed by a duly authorised representative of ADEPT CTS; and
  • it owns, or has obtained all valid licences, consents, permissions and rights necessary to enable ADEPT CTS to comply with its obligations under the Agreement and to use any of the Intellectual Property Rights necessary for the fulfilment of all its obligations under the Agreement including for the Customer’s use and receipt of the Services, and ADEPT CTS shall not breach the provisions of any such necessary licences, consents, permissions and rights or cause the same to be breached;
• ADEPT CTS warrants that:
  • it shall comply with all laws and regulations applicable to ADEPT CTS in performing its obligations under the Agreement;
  • the Customer’s possession and use in accordance with the Agreement of any materials (including third-party materials) supplied by ADEPT CTS to the Customer shall not cause the Customer to infringe the rights, including any Intellectual Property Rights, of any third party;
  • all personnel and sub-contractors used by ADEPT CTS in the performance of the Agreement are adequately skilled and experienced for the activities they are required to perform; and
  • it will not knowingly introduce, or permit the introduction of, any viruses or vulnerabilities into Customer’s Operating Environment, or the Customer’s other network and information systems, while performing the Services.

10. Fees and Payments

• The Customer shall pay the Fees as set out in the Order Form. Where the Fees are based on a number of agreed users, then such number shall be a minimum applicable for the Term and cannot be reduced. However, if the Customer wishes to increase the number of users this can be done by request to ADEPT CTS, who will consider such request and, if granting the request, shall confirm this in writing to the Customer and the Fees shall increase on a pro rata basis from the date such additional users first access or receive the Managed Services. Once user numbers are increased they cannot be decreased for the remainder of the Term.
• Providing prior approval has been obtained before incurring, the Customer shall reimburse ADEPT CTS for all actual, reasonable travel costs and expenses including travel, hotels and meals incurred by ADEPT CTS in performance of the Services.
• All payments made by the Customer under the Agreement are exclusive of VAT. ADEPT CTS shall provide the Customer with a valid VAT invoice. The Customer shall pay VAT and any other applicable tax to the Services.
• ADEPT CTS shall invoice the Customer monthly in advance for all Services, unless otherwise stated in the Order Form.
• If the Customer fails to make any payment due to ADEPT CTS under the Agreement by the due date for payment, then, without limiting ADEPT CTS’s remedies under 15, the Customer shall pay interest on the overdue amount at the rate of 4% per annum above 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.

11. Service Review and Governance

• The Customer’s and ADEPT CTS’s personnel shall have regular meetings (in person or remotely) held at no more six-monthly intervals (Review Meeting) to monitor and review the performance of the Services under the Agreement, and to discuss the Support Policy.

12. Proprietary rights

• Nothing in the Agreement affects either party’s rights in and to any Intellectual Property Rights that existed prior to the date of the Agreement (including pre-existing Intellectual Property Rights of either party contained in or relating to Confidential Information).
• The Customer acknowledges and agrees that, as between the parties, ADEPT CTS and/or its licensors own all Intellectual Property Rights in the Services, the Work Product, Supplier Software, Third Party Software and in all other materials connected with the provision of the Services and/or developed or produced in connection with the Agreement by ADEPT CTS, its officers, employees, sub-contractors or agents. Except as expressly stated in the Agreement, the Agreement does not grant the Customer any rights to such Intellectual Property Rights.
• ADEPT CTS acknowledges and agrees that the Customer owns and retains all rights, title and interest in and to the Customer Data and Customer’s Software. Save to the extent necessary for the provision of the Services and performance of its obligations under the Agreement, ADEPT CTS shall have no rights to access, use or modify the Customer Data unless it has the prior written consent of the Customer.
• ADEPT CTS grants to the Customer, and any group company specified in the Order Form, a revocable, non-exclusive, royalty-free, non-transferable, non-sublicensable, worldwide licence during the term of the Agreement to use its Intellectual Property Rights in the Services, Supplier Software, Third Party Software (where applicable and licensed via ADEPT CTS and not directly) and Work Products (as applicable) solely for the purposes of receiving the Services for its internal business purposes.
• The Customer grants to ADEPT CTS a revocable, sub-licensable, non-transferable, non-exclusive, royalty-free, worldwide limited licence for the term of the Agreement to use, exploit, copy, reproduce, manufacture, sub-license, modify, improve, enhance and make derivative works of the Customer’s Intellectual Property Rights solely to the extent and as incorporated into the Work Product and solely to the extent necessary to enable ADEPT CTS to provide the Services and to comply with its obligations under the Agreement.

13. Confidentiality

• Confidential Information means all confidential information (however recorded or preserved) disclosed by a party or its Representatives (as defined below) to the other party and that party’s Representatives whether before or after the date of the Agreement, including but not limited to:
  • the terms of the Agreement or any agreement entered into in connection with the Agreement;
  • any information that would be regarded as confidential by a reasonable business person relating to:
    • the products, services, business, assets, affairs, customers, clients, suppliers or plans of the disclosing party (or of any member of the group of companies to which the disclosing party belongs); and
    • the operations, processes, product information, know-how, designs, trade secrets or software of the disclosing party (or of any member of the group of companies to which the disclosing party belongs); and
  • any information developed by the parties in the course of carrying out the Agreement, including in respect of ADEPT CTS the Work Product.
• The provisions of this 13 shall not apply to any Confidential Information that (i) is in the public domain other than as a result of a breach of this Agreement; (ii) was in the possession of the receiving party prior to the date of receipt from the disclosing party or was rightfully acquired by the receiving party from sources other than the disclosing party; (iii) is required to be disclosed by law, or by a competent court, tribunal, securities exchange or regulatory or governmental body having jurisdiction over it wherever situated; or (iv) was independently developed by the receiving party without use of or reference to the confidential information
• Each party shall keep the other party’s Confidential Information secret and confidential and shall not:
  • use such Confidential Information except for the purpose of exercising or performing its rights and obligations under or in connection with the Agreement; or
  • disclose such Confidential Information in whole or in part to any third party, except as expressly permitted by this 13.
• A party may disclose the other party’s Confidential Information to those of its employees, officers, contractors, subcontractors, representatives and advisers who need to know such Confidential Information in relation to performance of this Agreement, provided that the disclosing party remains responsible for such persons compliance with the confidentiality obligations set out in this 13. ADEPT CTS acknowledges and agrees that the Customer Data is the Confidential Information of the Customer.
• Except as expressly stated in the Agreement, no party makes any express or implied warranty or representation concerning its Confidential Information.
• The provisions of this 13 shall continue to apply after termination or expiry of the Agreement for a period of 5 years.

14. Limitation of Liability

• This 14 sets out the entire financial liability of ADEPT CTS (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of:
  • any breach of the Agreement;
  • any use made by the Customer of the Services; and
  • any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including negligence) arising under or in connection with the Agreement.
• Except as expressly provided in the Agreement:
  • the Customer assumes sole responsibility for results obtained from the use of the Services, and for conclusions drawn from such use. ADEPT CTS shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to ADEPT CTS by the Customer in connection with the Services, or any actions taken by ADEPT CTS at the Customer’s direction; and
  • all warranties, conditions and other terms implied by statute, common law or otherwise are, to the fullest extent permitted by law, excluded from the Agreement.
• Nothing in the Agreement excludes or limits the liability of ADEPT CTS for:
  • death or personal injury caused by ADEPT CTS’s negligence;
  • fraud or fraudulent misrepresentation; or
  • any other liability which cannot lawfully be excluded or limited; or
  • in the case of the Customer, the Customer’s obligation to pay the Fees.
• ADEPT CTS excludes liability under this Agreement , whether in contract, tort or otherwise, for any and all losses incurred by the Customer arising out of in connection with:
  • the acts, omissions or defaults of Microsoft under the Microsoft Customer Agreement, or such other third party supplier directly contracted with the Customer;
  • modifications, maintenance or enhancements made by the Customer which would otherwise be performed by ADEPT CTS under the Managed Services;
  • Customer’s use of Third Party Software not approved or supplied by ADEPT CTS;
  • failures in connectivity or transmission by a third party internet service provider; or
  • Customer’s failure to comply with the Operating Requirements.
• Subject to 14.3 and 14.4:
  • ADEPT CTS shall not be liable whether in contract, tort (including for negligence or breach of statutory duty), misrepresentation (whether innocent or negligent), restitution or otherwise for any loss of profits, loss of business, depletion of goodwill or similar losses, or for any indirect or consequential loss, costs, damages, charges or expenses however arising; and
  • ADEPT CTS’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of the Agreement shall be limited to the price paid for the Services during the 12 months preceding the date on which the claim arose.

15. Term and Termination

• The Agreement shall commence on the Effective Date. Unless terminated earlier in accordance with this 15, the Agreement shall continue in force for the Initial Term and shall automatically extend for successive 12 month periods (Extended Term) at the end of the Initial Term and at the end of each Extended Term. Either 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 the Agreement at the end of the then current Initial Term or the relevant Extended Term, as the case may be.
• Without prejudice to any other right or remedy available to it, and subject to 16, either party may terminate the Agreement with immediate effect by giving written notice to the other party if:
  • the other party fails to pay any amount due under the Agreement on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment;
  • the other party commits a material breach of any other term of the 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;
  • the other party takes or has taken against it (other than in relation to a solvent restructuring) any step or action towards its entering bankruptcy, administration, provisional liquidation or any composition or arrangement with its creditors, or otherwise suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
  • in the case of the Customer, if there is a change of control of the Customer, which results in a competitor of ADEPT CTS taking control of the Customer (as determined by ADEPT CTS acting reasonably) ( change of control has the meaning given in section 1124 of the Corporation Tax Act 2010).
• Any provision of these Terms which expressly or by implication are intended to come into or continue in force on or after expiry or termination of the Agreement shall remain in full force and effect.
• Expiry or termination of the Agreement for any reason shall not affect the accrued rights, remedies, obligations or liabilities of the parties existing at expiry or termination.
• On expiry or termination of the Agreement for any reason:
  • ADEPT CTS 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 16 (Exit Assistance);
  • 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;
  • if requested within 30 days of termination ADEPT CTS shall provide a copy of its most recent back up of Customer Data in a format determined by ADEPT CTS, otherwise it shall promptly expunge from ADEPT CTS’s System and otherwise destroy or dispose of all of the Customer Data in its possession or control. ; and
  • the Customer will pay all of ADEPT CTS’s outstanding unpaid invoices and, in respect of Services supplied but for which no invoice has been submitted, ADEPT CTS shall submit an invoice, which shall be payable by the Customer immediately on receipt.

16. Exit Assistance

• The Customer may, at any time before expiry or termination of all or any part of the Agreement for any reason, request that ADEPT CTS offer reasonable assistance in transitioning the Services to a replacement supplier. ADEPT CTS shall, in consideration of a reasonable fee (to be agreed in advance or otherwise on a time and materials rate at ADEPT CTS’s then current rates), provide such assistance for a maximum period of three months, or until expiry or termination of all or any part of the Agreement for any reason in accordance with 15, whichever is later.

17. Force Majeure

• Neither party shall have any liability to the other under the Agreement if it is prevented from, or delayed in, performing its obligations under the Agreement, arising from any Force Majeure Event, provided that:
  • the other party is notified of such an event and its expected duration; and
  • it uses all reasonable endeavours to mitigate, overcome or minimise the effects of the Force Majeure Event concerned, and that if the period of delay or non-performance continues for 6 weeks or more, the party not affected may terminate the Agreement by giving not less than 30 days’ written notice to the other party.

18. Waiver

• A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
• A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.

19. Severance

• If any provision or part-provision of the Agreement is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Agreement.
• If any provision or part-provision of the Agreement is deemed deleted under 19.1 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.

20. Entire agreement and variation

• This agreement constitutes the entire agreement between the parties and supersedes all previous and contemporaneous agreements, promises, assurances and understandings between them, whether written or oral, relating to its subject matter.
• No variation of the Agreement shall be effective unless it is in writing and agreed by both parties.

21. Assignment

• ADEPT CTS may at any time assign, transfer, mortgage, charge, sub-contract, delegate, declare a trust over or deal in any other manner with all or any of its rights and obligations under the Agreement without the consent of the Customer.
• The Customer shall not, without the prior written consent of ADEPT CTS, assign, transfer, mortgage, charge, sub-contract, delegate, declare a trust over or deal in any other manner with any of its rights or obligations under the Agreement.

22. No partnership or agency

• Nothing in the Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, or any party the agent of another party nor authorise any party to make or enter into any commitments for or on behalf of any other party.

23. Third party rights

• This agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Agreement.

24. Rights and remedies

• Except as expressly provided in the Agreement, the rights and remedies provided under the Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

25. Notices

• Any notice given to a party under or in connection with the Agreement shall be in writing and shall be
  • delivered by hand or by pre-paid first-class post or other next Business Day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
  • sent by email to the addresses specified in the Order Form (or such other address as notified from time to time)
• Any notice shall be deemed to have been received:
  • if delivered by hand, at the time the notice is left at the proper address;
  • 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; or
  • if sent by email, at the time of transmission, or, if this time falls outside Normal Business Hours in the place of receipt, when Normal Business Hours resume.
• This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

26. Governing law and jurisdiction

• 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.
• Each party irrevocably agrees that the courts of England and Wales shall have exclusive or non-exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Agreement or its subject matter or formation (including non-contractual disputes or claims).

Schedule 1 : Managed Service Specification

Please refer to scope of services within ProAct Order Form

Schedule 2 : Support Policy

1.      Maintenance Events

• Maintenance work that may require interruption of the Managed Services (Maintenance Events) shall not normally be performed during Normal Business Hours. ADEPT CTS 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.
• Any Maintenance Events that occur during Normal Business Hours, are emergency maintenance, or that occur with less notice than required by 2.1, and which were not requested by the Customer, shall be considered downtime for the purpose of service availability measurement. ADEPT CTS shall at all times endeavour to keep any service interruptions to a minimum.

2.      Technical support services

• Should the Customer determine that the Managed Services include a defect or an Incident has occurred, the Customer may file error reports or support requests. ADEPT CTS shall provide technical support services only to officially logged issues.
• ADEPT CTS shall accept voicemail, e-mail and web form-based Incident submittal 24 hours a day, seven days a week (but note responses requirements and Service Levels will not apply outside of Normal Business Hours). ADEPT CTS shall accept telephone calls for English language telephone support during Normal Business Hours. ADEPT CTS shall use reasonable endeavours to process support requests, issue trouble ticket tracking numbers if necessary, determine the source of the problem and respond to the Customer. ADEPT CTS shall support Incidents within the time periods specified below, according to priority.
• Please note the only telephone to be used for support issues is [Insert].
• ADEPT CTS shall determine the priority of any Incident in accordance with the following table.

• ADEPT CTS shall provide automated monitoring of its Managed Services 24 hours a day seven days a week, with in person monitoring available in Normal Business Hours, unless otherwise specified in an Order.
• ADEPT CTS will provide reports to Customers who have purchased an Enterprise Support Agreement on a monthly basis.

3. Service AvailabilityADEPT CTS shall provide at least a 99% uptime service availability level (Uptime Service Level).

• The Managed Services shall be considered as unavailable only:
  • during periods of Priority 1 or Priority 2 incidents; and
  • during periods of unplanned Maintenance in accordance with 2.2 above.
• For the avoidance of doubt, the Managed Services shall not be considered as “unavailable” during Maintenance Events as described in 2.1 of this Support Policy, Customer-caused outages or disruptions, or outages or disruptions attributable in whole or in part to Force Majeure Events within the meaning of 17.

LIMITATIONS ON SERVICE LEVELS

The Service Levels will not apply if: (1) Customer disables (either intentionally or unintentionally) ADEPT CTS’s administrative access; (2) Customer makes any modifications that prohibit the Managed Services from being delivered properly; (3) Customer disables or modifies any software used or installed by ADEPT CTS for the purposes of monitoring or maintenance; (4) a Service Level failure is due to a Customer breach of the Agreement; (5) the availability failure is caused by an failure in an underlying, internet services, hosted or cloud services provided by a subcontracted third party.

If Customer engages in one or any combination of the activities specified in this section, Limitations on Service Levels, and submits a support Services request as a result of the Customer having engaged in one or any combination of the activities specified, ADEPT CTS may perform services that are outside the scope of the contracted support Services without Customer’s prior approval, and ADEPT CTS may charge the Customer, and the Customer will be required to pay, additional fees on a time and materials basis at ADEPT CTS’s rates as specified in the Order Form (or at its then current rates if not specified).

Schedule 3 : Operating Requirements

1. The Customer will ensure that the following are in place for the duration of the agreement to enable ADEPT CTS to provide the Services:
   1. Hardware should be less than 6 years old on the Effective Date and covered by an active warranty.
   2. Any Hardware which is defective will be promptly replaced.
   3. The Customer’s Operating Environment and Customer Site Equipment will be compatible with and supported by Microsoft Windows, Android or Apple operating systems.
   4. The Hardware, Customer Software and Third Party Software will be supported by maintenance or support contracts provided by third parties to ensure they are in good working order.
   5. The Customer’s Operating Environment will have a firewall in place between it and external networks.
   6. All data and Customer Data in the Customer’s Operating Environment will be encrypted.
   7. Ensure that all third party supplied hardware, software and services are subject to valid and appropriate support arrangements with the third party suppliers.