1. Definitions and Interpretation
1.1 In this master services agreement for LAN3 services (this “MSA”), the following definitions shall apply.
Acceptable Use Policy:- LAN3’s acceptable use policy in respect of Services and as LAN3 may update it from time to time in accordance with its terms.
Activation Date:- The date specified in clause 2 of this Agreement.
Business Day:- Monday to Friday excluding public holidays in England and Wales.
Business Hours:- 09:00 to 17:00 on Business Days.
Cancellation Written notice provided by the customer notifying LAN3 that it wishes to terminate the Contract, or to cease receiving an aspect of the Services, in accordance with clause 13.
Cancellation Charge An amount equal to:
if the Cancellation was served by the Customer after the later of the Contract Start Date or the Activation Date, the Fees that would otherwise have been payable in respect of the Contract or the aspect of the Services that the Customer wishes to cease receipt of (whichever is applicable) from the date the Cancellation was served to the date that the Contract was due to expire, or provision of such Service was scheduled to expire in accordance with the Contract; and
if the Cancellation is served after the later of the Contract Start Date or the Activation Date, any non-recurring charges payable pursuant to clause 9.6, plus 50 per cent of the other Fees payable during the Initial Term, plus in each case any other amounts specified as payable as part of the Cancellation Charge in the Service Schedule.
Change Control Procedure The procedures for changing the Service Specification as set out in clause 10.
Confidential Information Confidential Information means any information, technical data or know-how, in any medium, which is marked “confidential”, which the receiving party knows or reasonably ought to know is confidential, or which is by its nature confidential, except information, technical data or know-how which:
is in the possession of the receiving party at the time of disclosure, is not subject to an obligation of confidentiality and can be demonstrated beyond doubt as being in the receiving party’s files and/or records immediately prior to the time of disclosure;
prior to or after the time of disclosure becomes public knowledge, other than as a result of breach by the receiving party of its obligations under the Contract;
is approved for release by the disclosing party; or
is independently developed by the receiving party without the use of any Confidential Information of the disclosing party.
Contract The agreement between LAN3 and the Customer comprising this MSA and the Service Schedule.
Contract Start Date
The date specified as such in the Service Schedule.
Customer: The person identified as such in the Service Schedule.
Customer: Data Any data uploaded to, stored on or processed using the Services by the Customer.
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 LAN3’s System in order for the Customer to receive the Services, but excluding the Customer Site Equipment.
Customer Representative: The contact defined in the Service Schedule or such other person notified in writing by the Customer to LAN3 who shall be the Customer’s main technical contact.
Customer Site: Any premises occupied by the Customer at which it receives the Services, as detailed in the Service Schedule.
Customer Site Equipment: Any equipment located or to be located on a Customer Site but controlled or to be controlled exclusively by LAN3 as part of the Services.
Data Controller: Has the meaning given to it in GDPR.
Data Processor: Has the meaning given to it in the GDPR.
Documentation: The solution documentation made available to the Customer by LAN3 from time to time which may set out any additional description of the Services and/or contain the user instructions for the Services.
GDPR: The General Data Protection Regulation (2016/679) as it may be amended or supplemented by other legislation from time to time, or any such similar legislation which may supersede it.
Excused Outage: Any outage, unavailability, delay or other degradation of Service related to, associated with or caused by: planned maintenance events; any Service not supported by a LAN3 traversing Hardware component; any third party plugin or ancillary equipment not supplied by LAN3; a Customer application running on a server (virtual or physical) which is not supported by LAN3; the Customer actions or inactions or those of any third party excluding any sub-contractor or IT Partner of LAN3 directly involved in the performance, operation or maintenance of the Customer’s Service.
Fees: All of the fees payable to LAN3 by the Customer in respect of the Services, whether one-off or recurring, as set out in the Service Schedule in respect of the Initial Term, and thereafter as revised by LAN3 prior to each Renewal Term in accordance with clause 13.3.
Good Industry Practice: The degree of skill and care which it is reasonable to expect of a provider of services similar to the Services.
Hardware: All physical telecommunications, networking and computer equipment (including switches, routers, cables, servers, racks, cabinets and peripheral accessories) provided and used by LAN3 to deliver the Services to the Customer.
Initial Term: The initial term of the Contract specified in the Service Schedule, measured from the later of the Contract Start Date and the Activation Date.
Initial Service Schedule: The first document entitled "Service Schedule" issued by LAN3 in response to the Customer's request for Services, setting out at least a high level description of the Services to be provided by LAN3, and the corresponding Fees payable by the Customer.
Intellectual Property Rights: Any and all intellectual property rights of any nature, whether registered, registerable or otherwise, including patents, utility models, trademarks, registered designs and domain names, applications for any of the foregoing, trade or business names, goodwill, copyright and rights in the nature of copyright, design rights, rights in databases, moral rights, know-how and any other intellectual property rights that subsist in computer software, computer programs, websites, documents, information, techniques, business methods, drawings, logos, instruction manuals, lists and procedures and particulars of customers, marketing methods and procedures and advertising literature, including the "look and feel" of any websites, and in each case all rights and forms of protection of a similar nature or having equivalent or similar effect to any of these that may subsist anywhere in the world, in each case for their full term, together with any future rights and renewals or extensions.
IT Partner: A third party used by either party in the provision of a Service.
LAN3: LAN3 Limited (Company number 06580268) and any successor or assignee thereof.
LAN3’s System: The information and communications technology system to be used by LAN3 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.
Maintenance Contract: A Hardware or Software support contract relating to a supported device which has been agreed between the manufacturer, or recognised vendor support partner, and the Customer.
Personal Data: Has the meaning given to it in GDPR
Relief Event: An event arising as a result of any action or omission of the Customer, or any third party appointed, engaged or otherwise instructed by the Customer, which directly or indirectly causes any delay or disruption to the provision of the Services by LAN3
Renewal Term: A period of 12 months from the expiry of the Initial Term or the previous Renewal Term, as the case may be.
Replacement Supplier: Has the meaning given to it in clause 16.2.3.
Services: The Services to be provided to the Customer by LAN3, as set out in the Service Schedule.
Service Level Arrangement or SLA: The service level arrangements applicable to the Services, if any, as attached to the Service Schedule.
Service Levels The metrics for measuring the performance of the Services as set out in the SLA.
Service Specification: The specification of the Services as set out in the Service Schedule and the Documentation.
Service Schedule: The schedule to this MSA titled “Service Schedule” as it may be amended, supplemented, or otherwise appended to pursuant to the terms of this Agreement.
Software: Any software used by LAN3 to provide the Services to the Customer.
Supplementary Service Schedule: Any document issued by LAN3 and entitled "Service Schedule" which, notwithstanding that it may be a separate document and/or delivered at a later date, supplements an Initial Service Schedule and, once accepted by the Customer in accordance with clause 2.4, forms part of the Service Schedule.
Term: The Initial Term and each Renewal Term.
TUPE: The Transfer of Undertakings (Protection of Employment) Regulations 2006 as amended by the Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 2014.
Transition Assistance Period: Has the meaning given to it in clause 16.2.3.
1.2 Clause, schedule and paragraph headings shall not affect the interpretation of this MSA.
1.3 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time and shall include all subordinate legislation made from time to time under that statute or statutory provision.
1.4 Any phrase introduced by the words “including”, “includes”, “in particular” or “for example”, or any similar phrase, shall be construed as illustrative and shall not limit the generality of the related general words.
1.5 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person's personal representatives, successors or permitted assigns.
1.6 If there is a conflict between this MSA and the Service Schedule, the latter shall prevail.
2. Ordering Services
2.1 In response to a written request by the Customer, LAN3 will prepare and send to the Customer an Initial Service Schedule. If the Customer wishes to contract with LAN3 to provide the Services set out in that Initial Service Schedule, it shall indicate its acceptance of the Initial Service Schedule by signing and dating it and returning a signed, dated copy to LAN3, whereupon the Contract shall be formed between the two parties and the Initial Service Schedule shall become the Service Schedule.
2.2 Depending on the nature of the Services, the Customer recognises that it may be necessary for LAN3 to perform preparatory design or specification work before proceeding to installation, provisioning and/or “go live”, where this is the case such work shall be described in the Initial Service Schedule. On commencement of the preparatory, design or specification work set out in the Initial Service Schedule LAN3 shall, on completion of such work provide to the Customer a Supplementary Service Schedule setting out further detail of how the Services shall be provided.
2.3 The Customer may request reasonable changes to the Supplementary Service Schedule, and LAN3 shall use reasonable efforts to accommodate such changes within the scope of the Fees set out in the Initial Service Schedule, failing which LAN3 and the Customer, each acting reasonably, will enter into good faith negotiations with a view to agreeing such changes to the Services and the corresponding Fees as may be required to give effect to the Customer's request. The Customer may accept a Supplementary Service Schedule in writing, by email, or by requesting through any other analogous medium that LAN3 proceed with providing the Services.
2.4 If the Customer fails to provide LAN3 with written notice that it does not accept the terms of a Supplementary Service Schedule within 7 days of receipt (as specified in clause 26, then the Customer shall be deemed to have accepted that Supplementary Service Schedule in its entirety. Once accepted, a Supplementary Service Schedule shall form part of the Service Schedule (and, therefore, part of the Contract) in respect of the relevant Services.
2.5 Following acceptance of the Initial Service Schedule (and where applicable, any Supplementary Service Schedule), LAN3 will provide the Customer with a provisional Activation Date for each element of the Services. LAN3 will use reasonable efforts to begin delivering each aspect of the Services on or before the relevant Activation Date, subject to payment by the Customer of any Fees which are payable in advance, the Customer’s compliance with all reasonable instructions issued by LAN3 relating to implementation of the Services, and the Customer's compliance with the terms of the Contract more generally (and in particular its obligations in clause 6), but time shall not be of the essence in this regard and the Customer acknowledges that the actual Activation Date of any or all aspects of the Service may differ.
2.6 If LAN3 has agreed with the Customer that any Professional Services Fees will be payable in arrears, the delivery of the Services is subject to credit approval at the beginning of the Term.
2.7 LAN3 does not expect that any of the Customer’s workers or employees, or those of its other current or former suppliers, will transfer to LAN3 under TUPE by virtue of the Contract. The Customer must disclose to LAN3, before LAN3 becomes obliged to provide the Services (and as a condition to such provision), sufficient information about any such workers or employees who will transfer so as to enable LAN3 to assess the likely costs of making such workers or employees redundant. If any such worker or employee who the Customer has not disclosed to LAN3 as transferring nevertheless is able to show that his or her contract of employment has transferred to LAN3 under TUPE as a result of the Contract, the Customer will indemnify LAN3 for its actual losses resulting from a claim brought by such undisclosed workers or employees, including reasonable legal fees, provided that LAN3 must not settle or otherwise dispose of such a claim without the Customer’s prior written consent.
2.8 Unless otherwise specified in the Service Schedule the Activation Date for the Services (or for any aspect of the Services subsequently added to the Service Schedule) shall be either:
2.8.1 The date specified as the Activation Date in the Service Schedule; or
2.8.2 the date on which LAN3 begins providing the relevant Services to the Customer.
2.9 Where the Activation Date is to be determined as set out in clause 2.8.1, the Customer shall have 14 days in which to notify LAN3 in writing of any material faults in the Services. If such notice is not received by LAN3 in that period, then the Services shall be deemed to be accepted and the Customer shall be liable to pay all ongoing Fees specified in the Contract.
2.10 Where the Customer notifies LAN3 of a material fault in the Services as set out in clause 2.9, LAN3 shall exercise its reasonable endeavours to correct such material faults as are identified. Once such faults have, in the reasonable opinion of LAN3, been remedied then the Customer shall be deemed to have accepted the Services and that date shall be the Activation Date.
2.11 The Customer acknowledges that LAN3 provides, and prices, Services only on the basis of this MSA and agreed Service Schedules. No other terms will apply, regardless of the form or timing of delivery.
3. Service Provision
3.1 Any applicable Service Level Arrangements shall apply with effect from the start of the first complete month occurring after the Activation Date.
3.2 LAN3 shall exercise its reasonable endeavours to deliver the Services in accordance with the SLA (where applicable). However, the parties agree that, where LAN3 has acted in accordance with this clause 3.2, that a breach of the SLA shall not represent a breach of the Contract and shall not entitle the Customer to any remedy (including without limitation service credits or any similar reduction in the Fees) not set out in the Service Schedule.
3.3 The Customer accepts that it shall be responsible for the use to which it puts the Services under its control, including any use by third parties (whether fraudulent or invited by the Customer) that it permits or suffers to occur (whether knowingly or unknowingly, and by its action or omission). In particular, the Customer acknowledges that the Services are not designed to be used in circumstances in which errors or failures in the Services could lead to death, personal injury or severe physical or environmental damage. Therefore, unless expressly agreed otherwise in the Service Schedule, the Customer will not use the Services for such purposes.
3.4 The Customer shall take full responsibility for all loss or damage caused to the Customer Site Equipment and risk for such items shall pass to the Customer from the point of installation of the Customer Site Equipment at the premises agreed between the two parties. Where the Customer Site Equipment is delivered in several installments, risk shall pass in the items so delivered on the date of their delivery.
3.5 The Customer shall not provide the Services to third parties or permit any third party to access or benefit from the Services, nor to access the Customer Site Equipment, unless otherwise expressly agreed to in writing by LAN3.
3.6 LAN3 reserves the right to:
3.6.1 modify LAN3's System, its network, system configurations or routing configuration; or
3.6.2 modify or replace any Hardware or Software in its network or in equipment used to deliver any Service over its network, provided that so doing will have no material adverse effect on either party’s ability to perform its obligations under the Contract. If such changes will have such a material adverse effect, the affected party will notify the other and the parties will follow the Change Control Procedure.
3.7 If a Service to be delivered by LAN3 is no longer readily available or is in short supply at the agreed time of delivery, LAN3 may substitute another product or service in its place. The substituted product will have equivalent or better performance and function and will be provided at no additional cost to the Customer.
3.8 If the Customer uses a Service, or requires LAN3 to implement or configure a Service, in a manner contrary to the Documentation or LAN3's reasonable recommendations, LAN3's obligation to provide that Service will be limited to reasonable endeavours.
3.9 Time shall not be of the essence in respect of the delivery of the Services.
4. Backup Services
4.1 The Customer acknowledges that certain risks, such as data loss, are an inherent part of using services. LAN3 can, where agreed with the Customer in the Service Schedule and in consideration of receipt of the relevant aspect of the Fees, provide certain limited backup and restoration services to the extent agreed in the Service Schedule as part of the Services. However, LAN3 does not provide general business continuity planning and execution services. Business continuity planning, and the execution and testing of such plans, is and shall remain the responsibility of the Customer, and the Customer acknowledges that the specific backup services provided by LAN3 are not a complete substitute for a comprehensive system of system and data backups, and robust disaster recovery plan. Therefore, LAN3 will have no liability for any loss of or damage to Customer Data, howsoever caused. If specific backup and restore services are included as part of the Services, LAN3 will perform such backup and restore services as are set out in the Service Schedule to the appropriate Service Level and in accordance with Good Industry Practice. However, the Customer acknowledges that:
4.1.1 LAN3 is not in a position to develop, evaluate or test the Customer’s wider business continuity or disaster recovery arrangements, and can only provide such backup and recovery services as form part of the contracted Services, and the selection and testing of appropriate backup and recovery solutions and strategies is and shall remain the Customer’s responsibility; and
4.1.2 LAN3 is not in a position to verify the accuracy, completeness or integrity of any Customer Data which it may back up as part of the Services, and can only back up such Customer Data as it is provided by the Customer. Therefore, LAN3 shall not be liable for any Customer Data backed up or restored by LAN3 that is inaccurate, incomplete or corrupted, provided that the restore and corresponding backup job was completed without material error.
4.2 Notwithstanding clause 4.1, LAN3 will not itself delete any Customer Data unless specifically permitted to do so by the Contract, instructed to do so by the Customer, or required to do so by law.
4.3 The Customer acknowledges that LAN3 is not an insurer. Therefore, where Customer Site Equipment must be replaced in the course of a disaster recovery, LAN3 can provide assistance in doing so, and will provide break/fix services to the extent that such services are within the scope of the Services, but all replacement, relocation and/or reinstallation costs in respect of Customer Site Equipment will otherwise be borne by the Customer.
4.4 Each party warrants that it shall comply with GDPR when performing its respective obligations under the Contract.
4.5 To the extent that LAN3 (as Data Processor) processes Personal Data on behalf of the Customer (as Data Controller), LAN3 will:
4.5.1 process such Personal Data only in accordance with the Customer’s instructions or as required by law or regulation;
4.5.2 take appropriate, reasonable technical and organisational measures to protect such Personal Data against unauthorised or unlawful processing and accidental loss, destruction, alteration or disclosure;
4.5.3 ensure that, having regard to the state of technological development and their cost of implementation, those measures ensure a level of security appropriate to (1) the harm that might result from such processing, loss, destruction or damage; and (2) the nature of such Personal Data; and
4.5.4 promptly inform the Customer if it receives a request or notice from a data subject seeking to exercising his or her rights under the GDPR in respect of such Personal Data, and (at the Customer's cost) comply with the Customer's reasonable instructions with respect to that request or notice.
4.6 The Customer instructs LAN3 to take such steps in the processing of Personal Data on its behalf as LAN3 reasonably considers necessary to the performance of its obligations under the Contract, irrevocably authorises LAN3 to give equivalent instructions to any relevant subcontractor on its behalf, and warrants that it is and will remain entitled to give the instruction and authorisation in this clause 4.6.
4.7 LAN3 will ensure that any subcontractor to which it delegates the processing of Personal Data on behalf of the Customer is bound by a written agreement imposing on the subcontractor obligations equivalent to those set out in clause 4.5 and the Customer specifically acknowledges that, save for where specifically agreed otherwise, LAN3 shall be permitted to delegate the processing of Customer Data in this fashion.
5.1 LAN3 will operate network safety and security measures and procedures consistent with Good Industry Practice.
5.2 Both LAN3 and the Customer will promptly inform the other if it suspects or uncovers any breach of security in respect of the Services, and LAN3 will use all commercially reasonable endeavours to verify and, if verified, promptly remedy such breach.
6. Customer Obligations
6.1 To enable LAN3 to fulfill its obligations under the Contract, the Customer will:
6.1.1 provide LAN3 promptly with any information and assistance it may reasonably request and/or require from time to time;
6.1.2 comply with the Customer Obligations set out in the Service Schedule;
6.1.3 afford LAN3 full and safe access to the Customer Site(s) and the Customer Site Equipment during Business Hours;
6.1.4 provide at the relevant Customer Site(s) all suitable computer hardware, software and telecommunications equipment (other than those specified to be provided by LAN3 in the Service Schedule);
6.1.5 where applicable, install the correct management agents for the Customer’s Operating Environment, or if LAN3 installs management agents as part of the Services, not interfere with such management agents;
6.1.6 provide LAN3 with copies of all policies that LAN3 is expected to observe at the Customer Sites (but nothing in this clause 6.1.6 shall oblige LAN3 to comply with any policy not specifically agreed in the Service Schedule);
6.1.7 appoint a Customer Representative who will be LAN3’s primary contact at the Customer and who must have or promptly be able to obtain sufficient authority to make all necessary decisions in relation to the Contract. The Customer will use reasonable endeavours to ensure continuity of the Customer’s Representative;
6.1.8 comply with all applicable laws and regulations with respect to its activities under the Contract;
6.1.9 carry out its responsibilities to LAN3 in a timely and efficient manner. In default of such obligation, LAN3 may adjust any timetable or delivery schedule as reasonably necessary;
6.1.10 use, and procure that its officers, employees, workers and subcontractors use, the Services only in accordance with the Acceptable Use Policy;
6.1.11 ensure that the Services are not used to receive, transmit, host or otherwise process any material and/or communication (other than entirely unsolicited inbound communications) that is menacing, of a junk-mail or spam-like nature, illegal, obscene, threatening, defamatory, discriminatory, actionable, or in violation of (or which would place LAN3 in violation of) any rules, regulations or laws to which the use of the Services are subject, or infringe the Intellectual Property Rights of LAN3 or any third party;
6.1.12 inform LAN3 of any new applications and or services brought onto the Services and ensure that such applications or services are licensed and compliant;
6.1.13 where relevant, properly train, supervise and manage its personnel in the use and application of the Services; and
6.1.14 implement effective and appropriate backup and other procedures for the protection of its data.
6.2 Additionally, and notwithstanding the above, LAN3 will not be responsible for any failure to provide the Services if any of the following criteria have not been met:
6.2.1 the Customer hardware and software configurations to be supported by LAN3 has been installed by LAN3; or has been reviewed by LAN3 and the Customer and agreed by both parties to be suitable for the intended purpose and within the ability of both parties to sustain;
6.2.2 the Customer has assumed responsibility for the purchase of associated hardware and software Maintenance Contracts. Where any related Maintenance Contract has been arranged directly with an IT Partner by the Customer, the Customer shall be responsible for advising that IT Partner that LAN3 will be managing the Customer’s systems from the applicable start date and, to the extent required, procuring for LAN3 a right to use the services provided under such Maintenance Contract;
6.2.3 the Customer has ensured that the performance or operation of any Customer installed applications shall, and those installed applications do not, have any direct impact upon LAN3’s ability to deliver the agreed Service Levels; and
6.2.4 the Customer has advised LAN3 of its internal procedures of internal escalation and systems maintenance.
6.3 If the Customer wishes to make any alterations, additions, or maintenance that will or may impact upon LAN3’s ability to deliver the Services, then the Customer must inform LAN3 in writing of such works prior to their commencement and shall be responsible for any disruption or delay to the provision of the service caused by any failure by it to provide such notice.
6.4 In the event of a Relief Event the Customer shall employ its best endeavours to notify LAN3 of the relevant circumstances which gave rise to that Relief Event as soon as possible, and LAN3 shall be granted an extension to all relevant deadlines equal to the length of any delay occasioned by that Relief Event, LAN3 shall have no liability in respect of any such delay caused by the Relief Event, nor in respect of any disruption to the delivery of the Services caused by that Relief Event.
6.5 LAN3 may charge the Customer for any additional reasonable costs and expenses properly incurred by LAN3 caused by variation in the Customer’s instructions, any failure on the part of the Customer to provide instructions in a reasonable and timely manner, or other failure to comply with this Clause 6.
7.1 LAN3 warrants that:
7.1.1 it will provide the Services in accordance with Good Industry Practice and substantially in accordance with the Service Specification and the Contract;
7.1.2 it has the full capacity and authority to enter into and perform the Contract and that the Contract is executed by a duly authorised representative of LAN3;
7.1.3 it will comply with all applicable UK laws in performing its obligations under the Contract; and
7.1.4 all personnel and sub-contractors used by LAN3 in the performance of the Contract are adequately skilled and experienced for the activities they are required to perform pursuant to the terms of the Contract.
7.2 The warranties in clause 7.1 shall not apply to the extent of any non-conformance caused by use of the Services contrary to LAN3's instructions.
7.3 If the Services do not conform with any of the warranties in clause 7.1 as a result of a breach by LAN3 of such warranty, LAN3 will use reasonable endeavours to correct such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance.
7.4 LAN3 does not warrant that the Customer's use of the Services will be uninterrupted or error-free, nor does LAN3 make any warranty that the Services shall be free from interruption or impairment as a result of disruptions to flows of data through and across the Internet.
7.5 If the Customer purchases goods (whether or not supplied alongside services) from LAN3 as part of this Agreement (such goods the “Goods”), then:
7.5.1 LAN3 warrants that such Goods will comply with any specification for them set out in the Service Schedule and that the Goods will be delivered to the premises specified in the Service Schedule with a delivery note setting out the type and quantity of the Goods delivered. For the purpose of determining whether delivery has been made, LAN3 shall be deemed to have successfully made delivery on the date that the Goods are left at the relevant premises specified in the Service Schedule.
7.5.2 LAN3 warrants that full title in Goods shall pass to the Customer on, but not before, the date that the Customer makes full payment for those Goods.
7.5.3 LAN3 does not warrant that it shall deliver any Goods on any date specified in the Service Schedule. While LAN3 shall exercise reasonable endeavors to arrange for delivery to take place on such date, any dates set out in the Service Schedule relating to delivery shall be approximate only and time shall not be of the essence in relation to this aspect of the Agreement.
7.6 The Customer warrants that:
7.6.1 it has the full capacity and authority to enter into and perform the Contract and that the Contract is executed by a duly authorised representative of the Customer;
7.6.2 it has the authority to grant any rights granted to LAN3 under the Contract;
7.6.3 it will comply with and use the Services in accordance with the Contract and all applicable laws;
7.6.4 it has and shall maintain all necessary licenses, permits, rights, consents, registrations, approvals and titles necessary for LAN3 to use or host any software, hardware, documentation or other materials provided by the Customer for use in the provision of the Services to the Customer; and
7.6.5 LAN3's use of any third-party materials supplied by the Customer in connection with the Contract, shall not cause LAN3 to infringe the rights, including any Intellectual Property Rights, of any third party.
8. IT Partners, EULAs and other Third Party Agreements
8.1 The Customer may contract directly with an IT Partner for provision of software or services related to the Services. Unless managing such contracts falls within the scope of the Services, the Customer will be solely responsible for all matters arising out of such contracts, including for any disruption, delay or other impairment of the Services.
8.2 Where LAN3 provides to the Customer access to or use of third party Software in the course of providing the Services, the Customer agrees to comply with the terms of the relevant end user license agreements applicable to such Software. Where required by an upstream supplier of such Software, the Customer agrees to provide to such upstream supplier sufficient access to relevant systems and records to allow such upstream supplier to verify compliance with such end user license agreements.
8.3 The Customer shall license or procure a license for the use of any software, programs and/or applications used by the Customer and not supplied by LAN3 (including the Customer’s Operating Environment). These may or may not be indirectly related to the Services.
9. Invoicing and Payment
9.2 The Customer accepts that LAN3 reserves the right to change or amend all Fees set out in draft Service Schedules, or to withdraw any draft Service Schedule at any time prior to its acceptance by the Customer.
9.3 The Customer acknowledges that the Fees chargeable in respect of certain Services are based on the Customer’s actual usage, and that the level of usage of such Services is controlled by the Customer. The Customer therefore agrees in respect of such Services to pay such Fees as the Customer may incur as a result of its actual usage, without the requirement for any additional purchase order. The Customer further acknowledges that fees charged by the upstream suppliers of certain Services will vary from time to time during the Term. The Customer therefore agrees that LAN3 may vary the Fees to reflect such changes in upstream fees. LAN3 will use reasonable endeavours to provide reasonable notice of such variations, but any failure by LAN3 to notify Customer in advance of any change of Fees to reflect the change in pricing of an upstream provider shall not relieve the Customer of the obligation to pay any increase in the Fees retrospectively implemented by LAN3.
9.4 LAN3 will invoice the Customer for its Fees for the Services in advance (unless specifically recorded otherwise in the Service Schedule). The Customer will pay LAN3 in full within thirty (30) calendar days from receipt of invoice.
9.5 If the Fees or any part of the Fees are unpaid, then LAN3 may withdraw or vary such arrangements at any time if:
9.5.1 there is (in the sole opinion of LAN3) a material adverse change in the creditworthiness of the Customer; or
9.5.2 the Customer fails to pay any amount which is due and payable.
9.6 Applicable third-party support and licensing Fees will be payable at initial purchase and any subsequent renewal dates.
9.7 When the Customer first orders a Service not previously supplied, or it is agreed by the parties as being either an addition to, or change to an existing Service being supplied, then a non-recurring charge may be specified as part of the Fees. This non-recurring charge is for installation of additional network infrastructure, cabling, electronics or other materials or consultancy. Non-recurring charges are payable by the Customer before delivery of the relevant Service and will be billed in advance. If the Customer fails to pay such non-recurring charges within thirty (30) calendar days following LAN3’s invoice for such non-recurring charges, then:
9.7.1 such failure to pay shall be an Excused Outage for the purposes of provisioning and/or installation of the Services;
9.7.2 LAN3 may suspend installation of the relevant aspect of the Service until receipt of such non-recurring charges.
9.8 If the Customer reasonably disputes any portion of an invoice, the Customer must submit a written claim for the disputed amount within thirty (30) calendar days after delivery of the relevant invoice and shall at all times remain liable for the payment of all items not disputed or not validly disputed as reasonably determined by LAN3. Where such dispute turns upon level of usage of the Services, LAN3’s records of such usage shall be presumed to be accurate unless proved otherwise by an independent expert appointed by LAN3 or appears to be contrary to Customer’s written purchase order for such Services.
9.9 The Customer waives the right to dispute any Fees not disputed within thirty (30) days of receipt of the relevant invoice.
9.10 When a dispute regarding amounts payable under the Contract is resolved to the Customer’s reasonable satisfaction, the Customer will immediately pay any amounts that were the subject of such dispute.
9.11 LAN3 reserves the right to charge interest to the Customer on any sums, fees or other charges which are not paid on the due date and that interest may be charged from the date such payment falls due at the statutory rate of two per cent (2%) per annum above the Bank of England 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 (and whether or not the sum in question was the subject of a dispute). The Customer shall pay the interest together with the overdue amount.
9.12 On expiry or termination of the Contract for any reason, any Fees incurred but unpaid shall become immediately due and payable and shall represent a debt due from the Customer to LAN3.
9.13 All charges for Service are net of VAT and other taxes. Except for taxes based upon LAN3’s net income, the Customer will be responsible for payment of all applicable taxes that arise in any jurisdiction, including but not limited to, VAT, sales, use, excise, access, bypass, franchise or other taxes, fees, charges or surcharges, however designated, imposed on or based on the provision, sale or use of the Services.
10. Change Control Procedure
10.1 The Customer acknowledges that changes to services must be carefully managed. Therefore, if the Customer wishes to change the scope of any of the Services then:
10.1.1 it shall submit to LAN3 a written proposal (the “Proposal”) setting out the desired changes, listing in full the amendments that it wishes to be made to the Service Schedule. Where the Customer wishes for LAN3 to propose amendments or technical details in relation to any desired change, then it shall set this out clearly in the Proposal.
10.1.2 Within 30 days of receiving the Proposal LAN3 shall provide a written response to the Customer advising as to whether it can accommodate any or all of the requested changes. Where LAN3 considers that it can accommodate one or more of the requested changes then it shall provide the Customer with a draft amended Service Schedule (the “Draft Update Schedule”) which has been updated so as to incorporate the relevant changes.
10.1.3 If the Customer wishes to adopt the changes incorporated in the Draft Update Schedule, then it shall provide confirmation to LAN3 by accepting the Draft Update Schedule in the fashion stipulated by LAN3. When such acceptance is received by LAN3 the Draft Update Schedule shall become the Service Schedule.
10.2 Where LAN3 wishes to make a change to the Service Schedule then it shall issue a Draft Update Schedule in the same manner as if one had been requested by the Customer as set out in clause 10.1.2, whereby the course of conduct set out in clauses 10.1.2 and 10.1.3 shall proceed as usual.
10.3 Nothing in this clause 10 shall limit LAN3’s ability to vary the Fees as set out elsewhere in this Agreement, and for the avoidance of doubt such variations to the Service Schedule shall not require the use of the procedure set out in this clause 10.
11. Intellectual Property
11.1 Nothing in the Contract will change the ownership of any of the Intellectual Property Rights of either party.
11.2 The Customer grants to LAN3 a non-exclusive, worldwide license to use its Intellectual Property Rights to the extent necessary for LAN3 to perform its obligations under the Contract for the Term.
11.3 The Customer will indemnify and hold harmless LAN3 against any loss or damage occasioned by a claim brought against LAN3, or any pending or threatened claim, by a third party that alleges that the Customer Data or the Customer’s use of the Services infringes such third party’s Intellectual Property Rights or other rights, provided that LAN3 shall at the Customer’s cost provide reasonable assistance in the defense and/or settlement of such claims, and provided that the Customer will have on request sole authority to defend or settle any such claim.
11.4 LAN3 will indemnify the Customer against any claim brought against the Customer by a third party that the Services infringe such third party’s Intellectual Property Rights or other rights, provided that:
11.4.1 Customer promptly notifies LAN3 in writing of any such claim (including pending or threatened claims) as soon as it has knowledge of such claim;
11.4.2 the Customer shall make no admission of liability or offer to settle any such claim without prior written authorization from LAN3;
11.4.3 the Customer shall, at its own cost, provide all necessary assistance in the defense and/or settlement of such claims requested by LAN3; and
11.4.4 LAN3 shall have on request sole authority to defend or settle any such claim.
12.1 Each party undertakes to the other that, except as provided by clause 12.4 or as authorised in writing by the other, it shall, at all times:
12.1.1 keep confidential all Confidential Information disclosed to it by the other party;
12.1.2 not disclose any such Confidential Information to any other person;
12.1.3 not use any such Confidential Information for any purpose other than as contemplated by the Contract; and
12.1.4 ensure that none of its directors, officers, employees, agents or advisers does any act which, if done by that party, would be a breach of this clause 12.
12.2 The Customer acknowledges that LAN3's Confidential Information includes any designs, plans, software or other materials created by LAN3 in connection with the Services.
12.3 LAN3 acknowledges that the Customer’s Confidential Information includes the Customer Data.
12.4 Notwithstanding clause 12.1, either party may disclose the Confidential Information of the other to:
12.4.1 any sub-contractor, supplier or professional adviser of that party;
12.4.2 any governmental or other authority or regulatory body; or
12.4.3 any employee or officer of that party, or of any of the aforementioned persons, in each case only to such extent as is necessary for the purposes of performing or enforcing the Contract, or as required by law, and in each case (unless prohibited by applicable law) subject to that party first informing the person in question that the Confidential Information is confidential and (except where the disclosure is to any such body as is mentioned in clause
12.4.4 12.4.2 above or any employee or officer of any such body) obtaining and submitting to the other party a written undertaking from the person in question, as nearly as practicable in the terms of this clause, to keep the Confidential Information confidential and to use it only for the purposes for which the disclosure is made.
12.5 The provisions of this clause 12 shall continue notwithstanding the termination of the Contract for any reason.
13. Term, Renewal and Cancellation Charges
13.1 The Contract will continue for the Initial Term and will thereafter automatically renew for successive Renewal Terms unless:
13.1.1 either party notifies the other party of termination, in writing, at least 90 days before the end of the Initial Term or the then-current Renewal Term, in which case the Contract will terminate upon the expiry of the Initial Term or then-current Renewal Term, as the case may be; or
13.1.2 otherwise terminated in accordance with its terms.
13.2 Certain Services are subject to longer cancellation periods imposed by the upstream supplier. The cancellation period for such Services will be as set out in the Service Schedule, and in respect of such Services clause 13.1 will be deemed to be amended accordingly.
13.3 The Customer acknowledges that the Fees are subject to variations caused by, among other things, increases in upstream supplier charges and general inflation, and that LAN3 may therefore vary the Fees payable by the Customer in respect of Renewal Terms. No less than 90 days before the expiry of the Initial Term and each Renewal Term, LAN3 will notify the Customer of any adjustment in the Fees payable for the subsequent Renewal Term and, unless the Customer terminates the Contract in accordance with clause 13.1.1, such adjusted Fees will apply from the start of such Renewal Term.
14.1 LAN3 may suspend all or any part of any Service without liability to the Customer if:
14.1.1 LAN3 reasonably believes that the Services have, are or will be used in breach of the Contract;
14.1.2 LAN3 discover that the Customer is affiliated in any manner with a person who has used similar services abusively in the past;
14.1.3 the Customer does not co-operate with LAN3’s investigation of any suspected breach of the Contract;
14.1.4 LAN3 reasonably believes that the Customer has permitted the Services to be accessed or manipulated by a third party without its consent;
14.1.5 LAN3 reasonably believes that Customer applications, databases or operating systems hosted on the Services have been hacked or compromised, except where such hack or compromise is reasonably attributable to LAN3’s failure to perform its obligations under the Contract;
14.1.6 LAN3 reasonably believes that suspension of the Services is necessary to protect LAN3’s System or LAN3’s other customers;
14.1.7 in the opinion of LAN3 any Fee or other amount due under the Contract is overdue, is at risk of non-payment, or has been threatened to be withheld by the Customer, in the opinion of LAN3; or
14.1.8 LAN3 is required to do so by law or a regulatory or government body.
14.2 If LAN3 suspends any Services pursuant to any of clauses 14.1.1, 14.1.3 or 14.1.7, then LAN3 may continue to charge the Customer the Fees for the Services during the period of suspension, and may charge the Customer a reasonable reinstatement fee upon reinstatement of the Services. If LAN3 suspends any Services pursuant to clause 14.1.5, then the Customer must address the underlying vulnerability prior to LAN3 placing the Services back in service. If the Customer requests, LAN3 may be able (but shall not be obliged) to perform this work for the Customer as a supplementary service on a time and materials basis at LAN3’s standard hourly rates.
15.1 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
15.1.1 the other party fails to pay any amount due under the Contract on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment;
15.1.2 the other party commits a material breach of any terms of the Contract which is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
15.1.3 the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
15.1.4 the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
15.1.5 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
15.1.6 an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party;
15.1.7 the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;
15.1.8 a person appoints or becomes entitled to appoint a receiver over the assets of the other party;
15.1.9 a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party's assets and such attachment or process is not discharged within 14 days; or
15.1.10 the other party suspends, ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
15.2 If clause 15.1 applies then without prejudice to any other right or remedy available to LAN3 it shall be entitled to cancel the supply of Services without any liability to the Customer and any unpaid Services shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
15.3 On termination or expiry of the Contract:
15.3.1 each party shall return and make no further use of any equipment, property, materials and other items (and all copies of them) belonging to the other party; and
15.3.2 any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced.
15.4 Upon expiration or termination of the Contract, the Customer must discontinue use of the Services and relinquish use of all Services assigned to the Customer by LAN3 in connection with Services, including pointing its domain name(s) away from Services. The Customer agrees that LAN3 may, as it determines necessary, make modifications to DNS records and zones on LAN3 managed or operated DNS servers and services.
16. Exit Assistance, Return of Customer Data and Transfer of Employees and Assets
16.1 Reasonably promptly following expiry or termination of the Contract for any reason, LAN3 will provide the Customer with one electronic copy of the Customer Data, in the format it is then in and on an “as-is” basis. Thereafter, subject to clause 16.3, LAN3 may delete the Customer Data at its discretion.
16.2 Reasonably promptly following expiry or termination of the Contract for reasons other than those set out in clause 15.1, LAN3 will:
16.2.1 provide to the Customer copies of existing technical documentation of the Services (save that LAN3 shall not be obliged to disclose any Confidential Information to the Customer as part of such disclosure);
16.2.2 hand over to the Customer all relevant passwords specific to the Services provided to the Customer; and
16.2.3 provide the Customer with such reasonable assistance and information in transitioning the Services to a replacement supplier (“Replacement Supplier”) as the Customer may request, for a period of up to 30 days following such expiry or termination, and thereafter chargeable to the Customer on a time and materials basis at LAN3’s then-current rates for a further period of no more than 90 days following such expiry or termination (together, the “Transition Assistance Period”).
16.3 If requested to do so by the Customer, upon expiry or termination of the Contract for reasons other than those set out in clause 15.1 and subject to continuing payment by the Customer of the applicable Fees, LAN3 will use reasonable endeavours to continue to provide such of the Services as the Customer may require for up to 30 days following such termination or expiry so as to allow the Customer to transition to a Replacement Supplier. The Customer acknowledges that certain upstream suppliers may not permit such transitional provision, and therefore agrees that this clause 16.3 will not apply in respect of Services which are dependent upon such upstream suppliers.
16.4 As soon as practicable after the commencement of the Transition Assistance Period, LAN3 will disclose to the Customer whether any of its workers or employees will transfer to the Customer or the Replacement Supplier by operation of TUPE, and if so will provide the Customer with sufficient information about such workers or employees to enable the Customer to assess the likely cost of making such workers or employees redundant. If any worker or employee of LAN3 who LAN3 has not disclosed to the Customer as transferring nevertheless is able to show that his or her contract of employment has transferred to the Customer or the Replacement Supplier under TUPE as a result of transitioning the Services to the Customer or the Replacement Supplier, LAN3 will indemnify the Customer for its actual losses resulting from a claim brought by such undisclosed workers or employees, including reasonable legal fees, provided that the Customer must not settle or otherwise dispose of such a claim without LAN3’s prior written consent.
17. Force Majeure
17.1 Neither party shall be liable, nor will Service Credits be applied, for any failure of any equipment, facilities or delivery of Services due to causes beyond such party’s reasonable control (including by way of example events of fire, flood, lock-out, riot, insurrection, etc).
18.1 Except as expressly and specifically provided in the Contract:
18.1.1 the Customer assumes sole responsibility for results obtained from the use of the Services, and for conclusions drawn from such use. LAN3 shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to LAN3 by the Customer in connection with the Services, or any actions taken by LAN3 at the Customer's direction; and
18.1.2 all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
18.2 Nothing in the Contract is intended to or shall be interpreted to exclude or limit the liability of either party for:
18.2.1 the indemnities expressly given in the Contract; or
18.2.2 any liability which cannot lawfully be excluded or limited.
18.3 LAN3 will have no liability to the Customer arising out of or in connection with the Contract for any loss of profits, account of profits, loss of business, loss of revenue, loss or reputation or goodwill, loss of opportunity, loss of data or interference with business (unless and solely to the extent that LAN3 provides backup and restore services as part of the Services), or any indirect or consequential loss of any kind howsoever caused and irrespective of whether such loss was foreseeable by either party.
18.4 In particular and without prejudice to the provisions of clause 18.3, LAN3 will not be liable for any loss or damage arising to the Customer’s systems, data, information, equipment (including the Customer’s Operating Environment) or any Intellectual Property Rights if such loss is in any way attributable to any of the following:
18.4.1 any failure of the Customer’s applications, databases or operating systems, including loss or corruption of data or failure to implement back-up procedures;
18.4.2 any failure of any applicable Service Level if in the reasonable opinion of LAN3 (based on its knowledge of the industry) the solution/systems have been tampered with by the Customer or any third party authorised by the Customer with or without LAN3’s knowledge;
18.4.3 any failure of any Customer-managed IT Partner to provide its services in accordance with the relevant agreements;
18.4.4 any Internet failure outside the control of LAN3; or
18.4.5 any latent defect in any third party equipment or Software, or failure of such equipment or Software to perform in accordance with the manufacturer’s specification.
18.5 In relation to any delivery of Goods to the Customer under the terms of this Agreement LAN3 shall have no liability for any failure of those Goods to conform to any warranty or specification caused by the Customer’s use of the goods after delivery, failure to follow any instruction given in relation to those Goods by LAN3 or their manufacturer, any depreciation in the value of the goods caused by reasonable wear and tear, or for any deviation by the Goods from the specification which is necessitated as a result of compliance with any applicable law.
18.6 Subject always to the maximum cap on liability set out in clause 18.7, LAN3’s liability for any failure to deliver Goods shall be limited to the cost incurred by the Customer in locating and purchasing replacement goods, less the price that the Customer was due (or did) pay to LAN3 for the Goods.
18.7 Subject to the other provisions of this clause 18, LAN3’s maximum aggregate liability to the Customer arising out of or in connection with the Contract is, in relation to each event and all events preceding that event (taken together), limited to an amount equal to the value of the insurance policy described in clause 21.
19.1 The Customer will not solicit, induce to terminate employment, or otherwise entice away whether directly or indirectly through another firm or company, any employee of LAN3 professionally or otherwise directly associated with LAN3 during the term of the Order or for 12 months thereafter.
19.2 For the avoidance of doubt, there is no restriction on the Customer employing any person who is employed or acting for LAN3 where that person responds to a bone fide public advertisement for employees.
20. No Waiver
20.1 No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
21.1 Each party shall at all times maintain appropriate policies of insurances with a reputable insurance company to cover their separate risks and liabilities under this agreement (such policies to include but not be limited to public liability insurance in an amount of not less than GBP 5,000,000 for any event, unless the parties agree otherwise in writing).
22.1 If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause 22 shall not affect the validity and enforceability of the rest of the Contract.
23.1 The Customer shall not, without the prior written consent of LAN3, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.
23.2 The Customer accepts that LAN3 may, in its sole discretion, sub-contract, outsource or resell all or parts of the delivery of a Service to any of LAN3’s IT Partners, provided that LAN3 remains responsible for any act or omission of its IT Partners and other sub-contractors.
24. No Partnership or Agency
24.1 Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute 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.
24.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
25. Third-Party Rights
25.1 Nothing in the Contract will confer any rights, including any right to enforce or oblige performance of any of its terms, on any third parties.
26.1 Any notice or other communication required to be given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand, by email to the Customer Representative at the address specified in the Service Schedule, or sent by pre-paid first class post or other next working day delivery service, at its registered office (if a company) or (in any other case) its principal place of business.
26.2 Any notice or communication shall be deemed to have been received if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address, or if sent by email, at 09:00 on the next Business Day after sending, or otherwise at 09:00 on the second Business Day after posting.
26.3 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.
27.1 Neither party will commit, or do or omit to do any act or thing which would result in the other party committing, an offence under sections 1, 2 or 6 of the Bribery Act 2010.
28. Entire Agreement and Amendment
28.1 The Contract constitutes the entire agreement between the parties and supersedes all previous discussions, correspondence, negotiations, arrangements, understandings and agreements between them relating to its subject matter.
28.2 Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of, any representation or warranty (whether made innocently or negligently) that is not set out in the Contract.
28.3 Nothing in this clause shall limit or exclude any liability for fraud.
28.4 No alteration to or variation of the Contract shall take effect unless and until the same is in writing and signed on behalf of each of the parties by a duly authorised representative.
29. Law and Jurisdiction
29.1 The Contract and all non-contractual obligations arising out of or connected with it will be governed by English law and subject to the exclusive jurisdiction of the English courts.