1. Application
1.1. These Terms of Service shall apply to the provision of IT Services by Apogee Solutions Limited, hereafter referred to as ‘The Company’, and you, referred to as ‘The Customer’.
2. Definitions and Interpretations
2.1. In these Terms and Conditions, unless the context otherwise requires, the following expressions have the following meanings:
2.1.1. “Agreement” – means the Managed IT and Cloud Service Agreement entered into by The Customer and The Company to which these Terms and Conditions apply;
2.1.2. “Commencement Date” – means the date services as set out in the Managed IT and Cloud Services Agreement start;
2.1.3. “Services” – means the Services provided by The Company as defined in the Managed IT and Cloud Services Agreement;
2.1.4. “Support Schedule” – means the items covered as defined in the Managed IT and Cloud Services Agreement;
2.1.5. ‘Fees” – means any and all sums payable by The Customer to The Company arising out of the performance of The Company obligations under these Terms and Conditions;
2.1.6. “Software” – means any and all programs, applications, instructions or similar that may from time to time be installed on The Customer computer systems;
2.2. Any reference in these Terms and Conditions to a statute or a provision of a statute shall be construed as a reference to that statute or provision as amended, re-enacted or extended at the relevant time;
2.3. The headings in these Terms and Conditions are for convenience only and shall not affect their interpretation;
2.4. “Project Work” covers any activity that is not a direct fix to a fault or error with the current IT infrastructure;
2.5. “Fault Resolution” covers any work that is a direct fix to a problem experienced by the Customer;
2.6. “Remote Support” covers any fault resolution.
2.7. “Pro-active Maintenance” covers work to maintain The Customer’s IT equipment proactively
3. Agreement
3.1. The Agreement starts on the Commencement date.
3.2. The Period Covered is as defined in the Agreement.
3.3. The Agreement and all terms and conditions in this document remain in effect until such time as written notice of termination is given by either party.
4. The Company obligations
4.1. With effect from the Commencement Date The Company shall provide IT support services as described in the Service Schedule and Fees section until such time as the agreement is terminated.
4.2. The Company will be under no obligation to provide support if The Customer has not paid in full the value of the agreement fee within the payment terms stated.
5. Hours of service
5.1. The Company will provide support as described in the specification of services between the hours of 9:00 and 17:30 Monday to Friday, excluding bank holidays.
5.2. Any support requested outside of these times will be charged at the applicable rate in accordance with the Payments and Fees set out in clause 11.
6. Specification of Services
6.1. Where ‘Unlimited Remote Support’ is part of the Agreement, subject to the terms set out in these terms and conditions, The Company will;
6.1.1. Provide unlimited remote Fault Resolution and Remote Support of items as listed in Service Schedule and Fees.
6.1.2. Provide unlimited, Proactive Maintenance and Support of items as listed in the Service Schedule and Fees.
6.2. ‘Unlimited Remote Support’ is limited to remote support only and does not cover onsite work if/where required. In addition, it does not cover new installations/upgrades of hardware/software, work arising from any 3rd party installations, or accidental damage caused by the customer, or its 3rd party suppliers. Any remote or on-site work arising in respect of these exclusions will be deemed Project work and will be covered by professional services charged at the applicable rate in accordance with the Payments and Fees set out in clause 11.
7. Service Provision
7.1. Any applicable Service Level Arrangements shall apply with effect from the start of the first complete month occurring after the Commencement Date.
7.2. The Customer is responsible for the use to which it puts the Managed Services under its control, including any use by third parties (whether fraudulent or invited by the Customer). In particular, the Customer acknowledges that the Managed Services are not designed to be used in circumstances in which errors or failures in the Managed Services could lead to death, personal injury or severe physical or environmental damage. Therefore, unless expressly agreed otherwise in the Work Order, the Customer will not use the Managed Services for such purposes.
7.3. The Customer Site Equipment is at the Customer’s risk from the point of installation.
7.4. The Customer shall not provide the Managed Services to third parties or permit any third party to access or benefit from the Managed Services, nor to access the Customer Site Equipment, unless otherwise expressly agreed to in writing by The Company.
7.5. The Company reserves the right to:
7.5.1. modify The Companies System, its network, system configurations or routing configuration; or;
7.5.2. modify or replace any Hardware or Software in its network or in equipment used to deliver any Managed 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.
7.6. If a Managed Service to be delivered by The Company is no longer readily available or is in short supply at the agreed time of delivery, The Company 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.
7.7. If the Customer uses a Managed Service, or requires The Company to implement or configure a Managed Service, in a manner contrary to the Documentation or the reasonable recommendations of The Company, the obligation of The Company to provide that Managed Service will be limited to reasonable endeavours.
7.8. Time shall not be of the essence in respect of the delivery of the Managed Services.
8. Disaster Recovery, Customer Data and Data Protection
8.1. The Customer acknowledges that certain risks, such as data loss, are an inherent part of using services such as the Managed Services. The Company can, where agreed with the Customer, provide backup and restore services as part of the Managed Services, which can form part of a Customer’s wider business continuity and recovery strategy. However, The Company does not provide general business continuity planning and execution services. Business continuity planning, and the execution and testing of such plans, is the responsibility of the Customer, and the Customer acknowledges that The Companies backup and restore services are not a complete substitute for Private & Confidential Master Services Agreement such arrangements. Therefore, if backup and restore services are not included in the Managed Services, The Company will have no liability for any loss of or damage to Customer Data, however caused. If backup and restore services are included in the Managed Services, The Company will perform such backup and restore services as are set out in the Work Order to the appropriate Service Level and in accordance with Good Industry Practice. However, the Customer acknowledges that:
8.1.1. The Company 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 Managed Services, and the selection and testing of appropriate backup and recovery solutions and strategies, is therefore the Customer’s responsibility; and
8.1.2. The Company is not in a position to verify the accuracy, completeness or integrity of the Customer Data, and can only back up the Customer Data as of its then-current state. Therefore, The Company will not be liable if any Customer Data backed up or restored by The Company is inaccurate, incomplete or corrupted, provided that the restore and corresponding backup job completed without error.
8.2. Notwithstanding clause 8.1, The Company will not itself delete any Customer Data unless specifically permitted to do so by the Contract or instructed to do so by the Customer.
8.3. The Customer acknowledges that The Company is not an insurer. Therefore, where Customer Site Equipment must be replaced in the course of a disaster recovery, The Company can provide assistance in doing so, and will provide break/fix services to the extent that such services are within the scope of the Managed Services, but all replacement, relocation and/or reinstallation costs in respect of Customer Site Equipment will otherwise be borne by the Customer.
8.4. Each party warrants that it shall comply with the DPA when performing its respective obligations under the Contract.
8.5. To the extent that The Company (as Data Processor) processes Personal Data on behalf of the Customer (as Data Controller), The Company will:
8.5.1. process such Personal Data only in accordance with the Customer’s instructions or as required by law or regulation;
8.5.2. take appropriate technical and organisational measures to protect such Personal Data against unauthorised or unlawful processing and accidental loss, destruction, alteration or disclosure;
8.5.3. 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
8.5.4. promptly inform the Customer if it receives a request or notice from a data subject seeking to exercise his or her rights under the DPA 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.
8.6. The Customer instructs The Company to take such steps in the processing of Personal Data on its behalf as The Company reasonably considers necessary to the performance of its obligations under the Contract, irrevocably authorises The Company 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 8.6.
8.7. The Company 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 8.5.
9. Security
9.1. The Company will operate safety and security measures and procedures consistent with Good Industry Practice for the prevention of unauthorised access or damage to any and all Managed Services.
9.2. Each of The Company and the Customer will promptly inform the other if it suspects or uncovers any breach of security in respect of the Managed Services, and The Company will use all commercially reasonable endeavours to verify and, if verified, promptly remedy such breach.
10. The Customer’s Obligations
10.1. To assist The Company to fulfil its obligations under the Contract, the Customer will:
10.1.1. provide The Company promptly with any information and assistance it may reasonably require from time to time;
10.1.2. take all reasonable precautions to ensure the safety and health of The Company personnel while such personnel are at The Customer’s premises;
10.1.3. afford The Company full and safe access to the Customer Site(s) and the Customer Site Equipment during normal working hours;
10.1.4. provide at the relevant Customer Site(s) all suitable computer hardware, software and Master Services Agreement telecommunications equipment (other than that specified to be provided by The Company in the Work Order);
10.1.5. where applicable, install the correct management agents for the Customer’s Operating Environment, or if The Company installs management agents as part of the Managed Services, not interfere with such management agents;
10.1.6. provide The Company with copies of all policies that The Company is expected to observe at the Customer Sites;
10.1.7. appoint a Customer Representative who will be The Company’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.
10.1.8. comply with all applicable laws and regulations with respect to its activities under the Contract;
10.1.9. carry out its responsibilities to The Company in a timely and efficient manner. In default of such obligation, The Company may adjust any timetable or delivery schedule as reasonably necessary;
10.1.10. use, and procure that its officers, employees, workers and subcontractors use, the Managed Services only in accordance with the Acceptable Use Policy;
10.1.11. ensure that the Managed 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 The Company in violation of) any rules, regulations or laws to which the use of the Managed Services is subject, or infringe the Intellectual Property Rights of The Company or any third party;
10.1.12. inform The Company of any new applications and or services brought onto the Managed Services and ensure that such applications or services are licensed and compliant;
10.1.13. where relevant, properly train, supervise and manage its personnel in the use and application of the Managed Services;
and
10.1.14. implement effective and appropriate backup and other procedures for the protection of its data where backup and restore services are not part of the Managed Services.
10.2. Additionally, and notwithstanding the above, The Company will not be responsible for any failure to provide the Managed Services unless the Customer has met or observed the following requirements:
10.2.1. all Customer hardware and software configurations to be supported by The Company have been installed by The Company or have been reviewed by both parties and agreed that the solution presented is both suitable for purpose and within the ability of both parties to sustain;
10.2.2. 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 The Company will be managing the Customer’s systems from the applicable start date and, to the extent required, procuring for The Company a right to use the services provided under such Maintenance Contract;
10.2.3. The Customer has ensured that the performance or operation of any Customer-installed applications has no direct impact upon The Company’s ability to deliver the agreed Service Levels; and
10.2.4. The Customer has advised The Company of its internal procedures for internal escalation and systems maintenance.
10.3. If The Customer wishes to make any alterations, additions, or maintenance that will or may impact upon The Company’s ability to deliver the Managed Services, then the Customer will inform The Company in writing of such works before their commencement.
10.4. In the event that the Customer, or any third party who is not a sub-contractor of The Company, omits or commits anything that prevents or delays The Company from undertaking or complying with any of its obligations under the Contract, then The Company shall notify the Customer as soon as possible, and The Company will have no liability in respect to any delay in the provision of the Managed Service that results from such act or omission. The Company may charge the Customer for additional reasonable costs and expenses properly incurred by The Company caused by a 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 10.
10.5. The Customer shall follow reasonable recommendations made by the Company in respect of their IT Infrastructure. Reinstating the IT infrastructure to operational condition due to conditions caused by The Customer not following recommendations shall be charged at our standard rates.
10.6. Issues arising from the use of file-sharing websites will not be covered under our ‘Unlimited Remote Support’ package.
11. Price Adjustment Mechanism
11.1. Purpose and Scope:
11.1.1. This clause outlines the mechanism for adjusting prices in response to changes in inflation rates or other economic factors;
11.1.2. it applies to all goods and services provided under this contract.
11.2. Price adjustments may occur due to the following triggering events:
11.2.1. Inflation Rate Change: If the annual inflation rate (as measured by the Consumer Price Index, CPI) exceeds a specified threshold (e.g., 2%) during any 12-month period.
11.2.2. Exchange Rate Fluctuations: Significant fluctuations in exchange rates affecting the cost of imported goods.
11.2.3. Direct Input Cost Changes: Unforeseen increases in direct input costs (e.g., raw materials, labour, energy).
11.3. The adjustment will be based on the percentage change in the relevant benchmark (e.g., CPI) over the specified period.
11.4. Frequency:
11.4.1. Inflationary price adjustments will occur no more than once in a 12-month period.
11.4.2 Price adjustments due to direct input cost changes and exchange rate fluctuations will occur as and when necessary
11.5. Notice and Implementation:
11.5.1. The party seeking an adjustment must provide written notice to the other party and;
11.5.2. adjusted prices will take effect on the date quoted
11.6. Fallback Mechanism:
11.6.1. if the specified benchmark (e.g., CPI) becomes unavailable or unreliable, a fallback mechanism (e.g., a fixed percentage) will apply.
11.7. Dispute Resolution:
11.7.1. Any disputes related to price adjustments will be resolved through [arbitration/mediation/litigation] as specified in the contract.
12. Payment and Fees
12.1. In relation to the Unlimited Remote Support package, The Customer agrees to pay The Company according to the schedule stated in the Agreement.
12.2. The Unlimited Support Package service fee is based on the provision of services listed within the Agreement’s Schedule of Supported Services. This fee may vary as your IT inventory changes.
12.3. All payments required to be made pursuant to these Terms and Conditions by either party shall be made within 30 days of the relevant invoice date, without any set-off, withholding or deduction except such amount (if any) of tax as that party is required to deduct or withhold by law.
12.4. Where services are provided outside of our Unlimited Support Package, our hourly rate for services provided during our standard hours of service is £93.
12.5. Where services are provided outside of our Unlimited Support Package, our hourly rate for services provided outside of our standard hours of service, Mon-Sat, is £140.
12.6. Where services are provided outside of our Unlimited Support Package, our hourly rate for services provided outside of our standard hours of service, Sun and bank holidays is £186.
12.7. Remote support time is charged in increments of 15 minutes with a minimum of 15 minutes. On-site support time is charged in 30-minute increments, with a minimum of 1 hour. Workshop time is charged in 15-minute increments, with a minimum of 30 minutes.
12.8. Where The Customer has purchased Service Credit units, the standard rates set out in 12. are subject to the discount and additional terms as defined in our latest rate card. Where Service Credits are utilised for on-call out-of-hours support, it will be at a flat rate of two Service Credit units per 15 minutes of support.
12.9. Fees arising from the purchase of Service Credits must be paid for in advance of use. The Company reserves the right to remove Service Credit discount if advance payment is not received.
12.10. Travel time (at the hourly rate set out in 12.4., 12.5. and 12.6.) is based on a return trip from our premises to yours.
13. Service Level Agreement
13.1. Business-critical issues that prevent the entire business from working will receive a remote response within two working hours. If the issue is reported before 12 pm and requires a site visit, we will be on-site the same day. After 12 pm, we will be on-site on the next working day.
13.2. Urgent issues that prevent a user, or a small subset of users, from working will receive a remote response within four working hours. If the issue is reported before 12 pm and requires a site visit, we will be on-site the next working day. After 12 pm, we will be on-site the next working day.
13.3. Issues that cause minor disruption to a user, a subset of users, or the entire business will receive a remote response within 16 working hours. If the issue requires an on-site visit, this will be arranged at a mutually convenient time.
13.4. General Service issues, such as new installation work, upgrades, functional changes, etc., will receive remote response within 16 working hours. If the service issue requires an on-site visit, this will be arranged at a mutually convenient time.
14. Liability
14.1. The Company shall indemnify the User in respect of any claim for damage or direct physical injury or death to any person caused by the acts or omissions of the Company, its servants or agents while on the Site for the purpose of this Agreement.
14.2. The Company shall indemnify the User in respect of any physical damage to the Users property (however, not including any loss of data), caused by the acts or omissions of the Company, its servants or agents while on the Site for the purpose of this Agreement. The Company’s total liability to the User under this sub-clause is limited to £1,000,000 for any one event or connected events.
14.3. Except as stated in sub-clauses (1) and (2) above The Company shall have no liability to the User in connection with this Agreement, including but not limited to liability for loss of profits and other consequential or indirect losses.
14.4. Subject to sub-clauses (1) and (2) above, the User shall indemnify The Company against any claims by third parties which are occasioned by, or arising from any action of performance by The Company in connection with this Agreement.
15. Assignation and termination
15.1. Neither party may assign or transfer this Agreement or any of its rights herein without the prior written consent of the other party.
15.2. If either party defaults in its obligations under this Agreement or fails to make payment of any sum hereunder, and such default or non-payment continues for a period of 21 days after receipt of written notice thereof by the other party, this Agreement may thereupon be terminated by the other party without prejudice to any other remedy it may have.
15.3. The Service agreement will automatically renew except as stated in 15.4 below.
15.4. Either The Company, or The Customer can terminate the Agreement in writing, with 30 days written notice before the Agreement renewal date.
15.5 Where Cloud Services listed in the ‘Microsoft Subscriptions’ and/or ‘Other Subscriptions’ are supplied with an annual commitment, their renewal date may exceed the renewal date of this agreement. As such, the outstanding amount due until the respective Cloud Services renewal date will become payable in full on termination of this agreement.
16. Exclusion of Liability
16.1. Except where provided otherwise in these conditions, The Company shall be under no liability of whatever kind, howsoever caused whether or not due to the negligence or wilful default of The Company or its servants or agents arising out of or in connection with the services. All conditions, warranties or other terms, whether express or implied, statutory or otherwise are hereby expressly excluded, providing that nothing in this paragraph shall exclude or restrict any liability of The Company for death or personal injury resulting from the negligence of The Company, its servants, or agents.
16.2. In any event, liability of The Company shall be limited to direct loss and shall not include indirect or consequential loss.
16.3. The Company, whilst employing best practice techniques, shall not be liable for the loss or damage to software programs or data during repair or upgrade of goods or carrying out of services, whether or not the same are under warranty.
16.4. All work is performed on the basis that The Customer has back-up and archiving procedures that ensure that any data or operating software lost by reason of equipment failure or as a result of maintenance operations, is recoverable from back-up files or archives maintained by The Customer, without financial loss to The Customer.
17. Non-Solicitation
17.1. The parties agree that neither of them will either on their own account or in partnership or association with any person, firm, company or organisation, or otherwise and whether directly or indirectly during, or for a period of six months from, the end of the term of this Agreement, solicit or entice away or attempt to entice away or authorise the taking of such action by any other person, any key executive of the other party who has worked on the services provided under this agreement at any time during the term of this Agreement.
18. Amendments
18.1. No amendments, waiver or variation of the Agreement is permissible, and it shall be binding upon the parties hereto unless set out in writing, expressed to amend this Agreement and signed by or on behalf of each of the parties hereto. The only exceptions to this are;
18.1.1 Items listed in this ‘Managed Services Package’ cannot be removed for the duration of the Agreement; however, where agreed in writing, additional Support Services may be added to the ‘Managed Services Package’ as and when required, and these will be billed from the start of the next monthly billing period.
18.1.2 Where Cloud Services listed in the ‘Microsoft Subscriptions’ and/or ‘Other Subscriptions’ are supplied with a monthly commitment, they can be removed with 30 days’ notice from the monthly anniversary of their commencement date. In addition, where agreed in writing, additional Cloud Services with a monthly commitment may be added to the ‘Monthly Subscription
Services will be provided as and when required, and charged for from the date added.
18.1.3 Where Cloud Services listed in the ‘Microsoft Subscriptions’ and/or ‘Other Subscriptions’ are supplied with an annual commitment, they can be removed with 30 days’ notice from the annual anniversary of the commencement date; however, where agreed in writing, additional Cloud Services with an annual commitment may be added to the ‘Monthly Subscription Services’ as and when required and these will be billed from the date added.
19. Confidentiality
19.1 Each of the parties hereto shall use its best endeavours to keep secret all confidential know-how, data, trade secrets and other information communicated to it or any of its or their employees pursuant to or in connection with its performance of this Agreement and shall not disclose such know-how, data, trade secrets or information to any person except its own employees who have the need to receive such information in the performance of this Agreement.
20. Force Majeure
20.1 Neither party hereto shall be liable for any delay or non-performance hereunder arising solely by reason of any cause or causes beyond its reasonable control.
21. Entire Agreement
21.1 The Agreement, when signed by both parties hereto, shall constitute the entire contract between the parties hereto relating to the subject matter thereof.
22. Law
22.1 The Agreement shall be governed and construed in accordance with English Law.
23. Severance
23.1 If any provision of these terms and conditions is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these terms and conditions and the remainder of the provision in question shall not be affected thereby.
24. Headings
24.1 The headings herein are for convenience only and shall have no legal effect.