CTECH Business Solutions Limited Standard Terms and Conditions.
Our provision of Services (and ancillary Products) is governed by this Customer Contract, General Conditions and the Special Conditions applicable to the relevant Services in force at the time your order is accepted, which are incorporated into and form part of the Contract between us. Save where the context requires, defined terms in this Order and the Special Conditions have the meaning given to them in the General Conditions. General Conditions & all relevant Special Conditions must be accepted by an appropriate account user before this order can be accepted and processed. Every time you order Services (and ancillary Products) from us, the General Conditions and the Special Conditions applicable to the relevant Services in force at that time will apply to the Contract between us.
The following words have the following meaning:
“Act” means the Communications Act 2003;
“CBS” means CTECH Business Solutions;
“Charges” means the charges payable by the Customer to CBS in respect of the Equipment and Services detailed in the Service Agreement Order Form;
“Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical and organisational measures: as set out in the UK Data Protection Legislation” in force at the time;
“Customer” means a person or entity who enters into a customer contract;
“Customer Contract” means an agreement between the customer and CBS for a service;
“Customer System” means the Customer’s system, software, network or equipment as described in the Order, which are the subject of the Support Services;
“Equipment” means any equipment which is supplied to the customer for the provision of the services;
“Maintenance Conditions” means these Additional Conditions which in addition to the General Conditions, shall apply to the provision by the Supplier of the Maintenance Services
“Maintenance Services” means the maintenance and support services and associated facilities described in the Order.
“Order Form”: means the CTECH Service Agreement order form (above), that outlines the Equipment and Services to be supplied by CBS;
“PBX” means Private Branch Exchange;
“Period” means the term of the contract as stated on the order form;
“Services”: means the Professional IT Services provided under the contract, including: Software Licences, User Right to Use Licences, Software Development, Project Management, Implementation Services, Training and After-Sales Support;
“Site” means the site locations owned or controlled by the Customer means at which the Services are to be provided to the Customer;
“UK Data Protection Legislation”: all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended;
1.1 A reference to an Act of Parliament in the Agreement includes any amendment, replacement or re-enactment and includes any by-laws, statutory instruments, rules, regulations, orders, notices, directions, consents or permissions made under it and any conditions imposed by it.
1.2 A reference in these Conditions to the ‘Services’ shall (unless otherwise expressly indicated) be deemed to be a reference to the Maintenance Support Services and/or the Ancillary Services (as appropriate).
2. Appointment and Term
2.1 This agreement shall commence on the date hereof and will continue thereafter until the expiry of the Period and thereafter unless it is terminated as per clause 9.
3. Service Preconditions
3.1 The Customer will not interfere with or modify any Equipment and will not remove or alter an identification mark on the Equipment showing that it is owned by CBS; and
3.2 When the ownership of the Equipment is relevant, the Customer will make clear to third parties that the equipment is CBS’s property; and
3.3 The Customer is responsible at all times for ensuring the safe use and safe custody of the equipment whilst it is in the Customer’s custody, including procuring and maintaining an appropriate insurance policy; and
3.4 The Customer shall not attempt to let, sell, charge or otherwise deal with the equipment,
3.5 The Customer must allow engineering access to their company premises (should CBS deem it necessary, and inform the customer of the need to provide service). Continued failure to do so will be treated as a breach, and termination charges detailed in Clause 8.3 will apply.
4. Supply of Services
4.1 The company warrants to the customer that the services will be performed by appropriately qualified and trained personnel, and in accordance with the standards of a competent IT / telecommunications provider (and for voice services in compliance with applicable BT and DTI requirements) with due care and diligence and to such high standard of quality as it is reasonable for the customer to expect in all the circumstances.
4.2 Subject always to clause 11.1, the company shall use its reasonable endeavours to provide the service to the customer from or before the date notified to the customer for the commencement and correct any faults in the services notified to it by the customer as soon as reasonably possible.
4.3 The customer should provide all reasonable assistance to the company (including access to all locations at which the company’s equipment is situated or is to be situated), so as to enable the company to supply and continue to supply the services.
4.4 The customer shall not use the service for any improper or unlawful purposes, nor allow others to do so.
5. Changes to the Services
5.1 CBS may at any time change the service:
(a) If it needs to do so to comply with any applicable safety or other statutory requirements; or
(b) Where the change does not materially detract from the quality or performance of the Services; or
(c) As otherwise required by the company in the normal course of running its business.
6. Suspension of Services
6.1 CBS may, without terminating this agreement, immediately suspend part or all of the Services until further notice if:
(a) CBS is obliged to comply with an order, instruction or request of Government, an emergency services organization, or other competent administrative authority (including Oftel and ICSTIS). CBS will give the Customer the maximum period of notice reasonably practicable in the circumstances if it needs to suspend the Services for this reason;
(b) or CBS suspects fraudulent use of the Services;
(c) or Customer fails to pay under agreed terms as per 8.1
6.1.2 The customer must pay the company for outstanding services via direct debit payment method as per payment terms due to this agreement under section 8.
7. Provisions relating to Services
7.1 The customer will be responsible for ensuring that the Services are not used for sending of any defamatory, offensive or abusive or obscene, or menacing material or in a manner which infringes the rights of any person (including rights of copyright or confidentiality) and if CBS incurs any liability to any person or expense in any way connected with any such use then the customer will promptly reimburse such amounts to CBS.
7.2 The customer must include telephone system related applications as part of their security policies and seek insurance against such acts. CBS will not be liable for any costs incurred due to fraud of any kind.
8. Charges and Payment
8.1 CBS accepts payment by Direct Debit Mandate only.
8.2 The customer must pay CBS the Charges for the Services by 30 days after the date of the invoice. If the Customer fails to make any payment within 30 days of the date of the date of invoice CBS may require the Customer to pay all sums due under this Agreement on demand.
8.3 All sums due to CBS under this Agreement are exclusive of Value Added Tax and any other applicable taxes which may from time to time be introduced, which shall be charged in accordance with the relevant regulations in force at the time of making the taxable supply and must be paid by the Customer.
8.4 The amount of Charges due to Customer shall be by reference to data recorded or logged by CBS and no data recorded or logged by the Customer.
8.5 If the Customer wishes to dispute any invoice the following provisions apply:
(a) The Customer must contact CBS in writing or by telephone within 14 days of the date of invoice. The customer must pay any undisputed amount by the due date;
(b) CBS will use its reasonable endeavours to resolve any dispute about a genuine grievance within 30 days of the Customer contacting CBS;
(c) If the dispute is resolved in the Customer’s favour, CBS will accept any payment of a lesser amount as agreed, and give credit to the Customer in its next invoice;
(d) If the dispute is resolved in CBS’s favour, the customer must pay any amount it has withheld within 14 working days and CBS may require the customer to pay any fees or expenses reasonably incurred by CBS in collecting, or attempting to collect, any charges owed by the Customer.
8.6 CBS may at any time vary the charges by decreasing the charges, without notice. CBS will notify the Customer of any decrease as soon as reasonably practicable after it becomes effective.
8.7 CBS may at any time vary the charges by increasing the charges. CBS will notify the Customer of any increase as soon as reasonably practicable, with a minimum 30 days-notice.
9. Suspension and Termination
9.1 Unless terminated as otherwise herein provided, the term of this Agreement shall be for the Minimum Period (as defined in the Order Form), from the date of the last signature of the Order Form.
9.2 The term may be extended after the end of the Minimum Period or any extended term, at the option of the Customer, giving at least 30 days written notice prior to the end of the minimum period or the end of any extended term. CBS will either:
(a) Agree to the requested extension maintaining the current charges, or
(b) Provide a new quotation with revised charges, as necessary.
9.3 Without prejudice to any other rights it may have in law, CBS may suspend the services immediately if:
(a) CBS has reasonable grounds for believing that the equipment is used or may be used in an unauthorised or illegal manner; or
(b) The customer is in breach of any terms of the contract; or
(c) The customer notifies the company that the equipment is lost or stolen; or
(d) The customer’s network fails or is being tested, modified or maintained; or
(e) The Customer fails to pay to CBS any charges when they become due, unless a good faith dispute arises as per 8.5
9.4 In the event that the company suspends the services pursuant to clause 9.3, CBS will not provide the applicable services again until the Customer takes such action as may in CBS’s absolute discretion be required; and the Customer shall continue to be responsible for CBS’s charges in accordance with clause 4 unless either party terminates in accordance with the remainder of this clause 9.
9.5 Either party may terminate the contract in respect of all or part only of the Service without liability to the other by giving notice to the Customer at any time if:
(a) The Customer commits any breach of the contract and, in the case of a breach capable of remedy, fails to remedy the same within 14 days after receipt of written notice from CBS giving particulars of the breach and requiring it to be so remedied; or
(b) The Customer makes any voluntary arrangement with its creditors (within the meaning of the insolvency Act 1986) or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order or goes into liquidation (otherwise than foe the purpose of amalgamation or reconstruction); or
(c) An encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Customer; or
(d) The Customer ceases, or threatens to cease, to carry on business or substantially changes the nature of its business;
(e) The Customer reasonably apprehends that any of the events mentioned above is about to occur in relation to the Customer and notifies the Customer accordingly.
9.6 To terminate the agreement, the Customer must give one month’s written notice to CBS. Such notice must be served by recorded first class post to the registered address of CBS on letterhead or from a recognised email address. Upon receipt of written notice CBS will respond via email or recorded first class post acknowledging receipt of said notice.
10. Limitations of Liability
10.1 Nothing in these Terms shall exclude or limit the liability of either party to the other:
(a) for death or personal injury caused as a result of its negligence or the negligence of its employees, agents or subcontractors;
(b) for fraud or fraudulent misrepresentation;
(c) for breach of the terms implied by section 2 of the Supply of Goods & Services Act 1982.
10.2 Subject to clauses 10.1 the total liability of the Customer to CBS arising under or in connection with the agreement, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed:
(a) in respect of damage to, or destruction of, tangible property, £50,000; and
(b) in respect of all other damage, loss, or liability, £50,000.
10.3 The provisions of this clause 10 shall survive termination or expiry of the Agreement.
11. Force Majeure
Neither party shall be obliged to carry out any obligation under this agreement where performance of such obligation is prevented due to any causes beyond that party’s reasonable control, including, but not limited to, failure or shortage of power supplies, labour shortage or labour disputes, the order, instruction, request, act or omission of Government, an emergency services organisation, other telecommunications operators or administrations or other competent authority, legal or statutory obligations, the obstruction by a third party of line of sight between microwave installations, or difficulty, delay or failure in manufacture, production or supply by third parties of either equipment or services or both resulting from the same or a similar type of force majeure cause.
12.1 The provisions of this clause do not apply to any Confidential Information which:
(a) is in or enters the public domain other than by breach of the agreement; or
(b) is obtained from a third party who is lawfully authorised to disclose such information; or
(c) is authorised in writing by the other party for release.
12.2 Nothing in this Clause prevents the Customer from disclosing confidential information where it is required to be disclosed by judicial, administrative, governmental or regulatory process in connection with any action, suit proceeding or claim or otherwise by applicable law.
12.3 The provisions of this clause survive the termination or expiry of this agreement.
13. GDPR & Data Protection Privacy Statement
13.1 Both parties will comply with all applicable requirements of the Data Protection Legislation.
13.2 This clause 13 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.
13.3 Without prejudice to the generality of clause 13.1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to CBS for the duration and purposes of this agreement.
13.4 CBS is committed to ensuring that your privacy is protected. Should we ask you to provide certain information by which you can be identified then you can be assured that it will only be used in accordance with this privacy statement.
13.5 Without prejudice to the generality of clause 13.1, CBS shall, in relation to any Personal Data processed in connection with the performance by CBS of its obligations under this agreement:
(a) process that Personal Data only on the documented written instructions of the Customer unless CBS is required by Applicable Laws to otherwise process that Personal Data. Where CBS is relying on Applicable Laws as the basis for processing Personal Data, CBS shall promptly notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit CBS from so notifying the Customer;
(b) ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Customer, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
(c) ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
(d) not transfer any Personal Data outside of the European Economic Area
(e) assist the Customer, at the Customer’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(f) notify the Customer without undue delay on becoming aware of a Personal Data Breach;
(g) at the written direction of the Customer, delete or return Personal Data and copies thereof to the Customer on termination of the agreement unless required by Applicable Law to store the Personal Data; and
(h) maintain complete and accurate records and information to demonstrate its compliance with this clause 13.
13.6 The Customer does not consent to CBS appointing any third-party processor of Personal Data under this agreement.
13.7 Either party may, at any time on not less than 30 days’ notice, revise this clause 13 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to this agreement).
13.8 CBS may change this policy from time to time. You should check with us regularly to ensure that you are happy with any changes. This policy includes the new requirements of the GDPR.
13.9 The personal information we collect might include your name, address, postcode, phone numbers, email address, IP address, and information regarding what pages you may also have accessed on our website and when. We will not collect, store or process data that is labelled as sensitive under GDPR.
13.9.1 We require this information to understand your needs and provide you with a better service, and in particular for the following reasons:
(a) Internal record keeping.
(b) We may use the information to improve our products and services.
(c) We may periodically send technical updates, promotional emails about new products, special offers or other information which we think you may find interesting using the email address which you have provided.
(d) From time to time, we may also use your information to contact you for market research purposes. We may contact you by email, phone, fax or mail. We may use the information to customise our website according to your interests.
13.10 We are committed to ensuring that your information is secure. In order to prevent unauthorised access or disclosure, we have put in place suitable physical, electronic and managerial procedures to safeguard and secure the information we collect on-line.
13.11 There may be occasions where data may be transferred outside of the EU for storage or processing (e.g. bulk email providers). Where necessary, we will take steps to ensure that there are adequate safeguards in place to protect your personal data.
13.12 You may request details of personal information which we hold about you under the GDPR (previously the Data Protection Act 1998). If you would like a copy of the information held on you please email us at [email protected]
14.1 Notices under this agreement must be in writing and shall be hand delivered or sent by first class prepaid post or email to the recipient’s address specified on the first page as varied by notice in writing from time to time.
14.2 A notice given in accordance with clause 14.1 is taken to be received, in the absence of evidence of earlier receipt; If hand delivered, on delivery; If sent by first class prepaid post, three days after the date of posting; or If sent by email
No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of that right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
16. Rights and remedies
Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
17.1 The Supplier shall not, without the prior written consent of the Customer, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
17.2 The Customer may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
19. Third party rights
No one other than a party to this agreement, shall have any right to enforce any of its terms.
20. Governing law
This agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are 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 jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).
2 APPLICABILITY OF THESE MAINTENANCE CONDITIONS
2.1 In addition to the General Conditions, the following shall apply to the provision of Maintenance Services and Ancillary Services by the Supplier pursuant to any Order and shall form part of the Contract: –
2.1.1 these Maintenance Conditions; and
2.1.2 any applicable SLA referred to in the Order or in any applicable MSA.
3 SUPPLY OF MAINTENANCE SERVICES
3.1 The Supplier shall supply the Maintenance Services in accordance with the Contract.
3.2 The Supplier may make changes to the Services as necessary: –
3.2.1 to comply with any legal or safety requirement.
3.2.2 to reflect the withdrawal of or a significant change to the technology used to provide the Services; or
3.2.3 which do not materially affect the nature or quality of the Services.
3.2.4 and the Supplier shall notify the Customer in any such case. If any change to the Services results in a material adverse impact on the nature or quality of the Services, the Customer may terminate the Contract upon written notice to the Supplier without incurring any Cancellation Charges.
3.3 The Supplier will use reasonable efforts to procure that its employees and sub-contractors will have due regard to the Customer’s reasonable requirements regarding health and safety whilst carrying out works at the Site.
3.4 The Supplier may give directions about the use of the Services to the Customer which the Supplier thinks are reasonably necessary in the interests of safety or the quality of the Services. The Customer shall comply with all such directions.
3.5 Where replacement parts are provided by the Supplier, the parts removed shall become the property of the Supplier.
3.6 Supplier may, at any time, substitute a later release of Software which will incorporate corrections in lieu of patch fixes on earlier releases. Later releases providing unchanged features and facilities shall be provided free of charge.
3.7 If the Customer requests the Supplier (and the Supplier agrees) to incorporate new features and/or facilities into the Customer System, the Supplier may levy additional charges
for such new features at rates to be agreed between the parties.
3.8 If at any time: –
3.8.1 the reconfiguration of any Software included in the Customer System is necessary in order to alter the operational parameters of the Customer System; and/or
3.8.2 any modifications to (including the removal or replacement of, or the addition of any components to) the Customer System is necessary in order to ensure the continued compatibility of the Customer System with updated versions of any relevant Software.
the Supplier may make an additional charge for this work. Such charge shall (unless otherwise agreed between the parties in writing) be calculated at the Supplier’s standard rates.
3.9 The Customer acknowledges that new releases of Software may create operational differences in the Customer System due to changes in the features and facilities of Software as implemented in the New Release. Supplier shall use all reasonable endeavours to minimise such differences and to advise the Customer of any material operational differences in any new release prior to implementation.
3.10 The implementation in the Customer System of later releases of Software may require that handset soft programming becomes reset. In such circumstances, the re-installation of the user programmable functions in any handsets under available soft keys is not included in the Maintenance Service and is the responsibility of the Customer. If the Customer requests (and the Supplier agrees) to carry out this work, the Supplier may make an additional charge for the work. Such charge shall (unless otherwise agreed between the parties in writing) be calculated at the Supplier’s standard rates.
3.11 If at the request of the Customer, the Supplier undertakes work to investigate any fault occurring which is not attributable to any failure of the Customer System, the Supplier reserves the right to make an additional charge for the work at the Supplier’s standard rates from time to time.
3.12 The Customers acknowledges and agrees that telephone calls to and from the Supplier’s customer service centre may be monitored and recorded by the Supplier for the purposes of monitoring performance and quality control
4 CUSTOMER’S RESPONSIBILITIES
4.1 The Customer shall in connection with the provision of the Maintenance Services: –
4.1.1 ensure that the environmental conditions at the Site comply with the requirements from time to time of the operator of any relevant telecommunications network and any relevant authority;
4.1.2 ensure that the environmental conditions at the Site comply with the reasonable requirements from time to time of the Supplier;
4.1.3 provide to the Supplier (including its sub-contractors) reasonable access at all relevant times to the Site and to the Customer System in order to facilitate the provision of the Maintenance Services;
4.1.4 provide to the Supplier adequate working and storage space, and such other facilities at the Site as the Supplier may reasonably require for the purpose of providing the Maintenance Services;
4.1.5 use all reasonable endeavours to keep the Customer System physically and logically secure from any tampering or interference by any third party;
4.1.6 ensure that all information (including any drawings, plans or sketches) provided by the customer to the supplier in connection with the provision of the Maintenance Services are complete, accurate and up to date;
4.1.7 ensure that any telephone system, call server, applications server and phone modules incorporated into the Customer System are supported by an uninterruptable power supply
5 ACTIVITIES NOT INCLUDED IN THE MAINTENANCE SERVICES
5.1 The Maintenance Services shall not include any maintenance or support activities in respect of the Customer System which are necessary as a result of any of the following:-
5.1.1 any failure of any equipment systems or software not comprised in the Customer System;
5.1.2 lightning damage or damage caused by electro-magnetic interference;
5.1.3 any damage to the Customer System resulting from accidental or deliberate damage, misuse or negligence (other than any accidental or deliberate damage, misuse or negligence of the Supplier or its sub-contractors);
5.1.4 any failure (other than a failure of Supplier or its sub-contractors) to comply with any operating instructions, guidelines or requirements of the Supplier or any applicable telecommunications network operator or regulatory authority;
5.1.5 any changes to the Customer System requested by the Customer;
5.1.6 any change in the requirements or practices of any applicable telecommunications network operator or other relevant authority.
5.2 The Maintenance Services shall not include:-
5.2.1 maintenance acceptance tests;
5.2.2 replacement of consumable materials, including, but not limited to, labels, cords, leads, batteries and USB drives;
5.2.3 repair or replacement of equipment relating to standby power supplies including Customer’s Obligations;
5.2.4 support or maintenance of any individual components of the Customer System which in the Supplier’s reasonable opinion are either so old or obsolete that they are no longer fit for purpose and/or can no longer be economically repaired or replaced.
Hourly Engineering Rates
Engineer call out – in Hours £150.00 (Includes 1st Hour)
Engineer call out – out of Hours £300.00 (includes 1st Hour)
Hourly Engineer rate – In Hours £75.00
Hourly Engineer rate out of Hours £125.00
EXPENSES AND TRAVEL COSTS
Overnight hotel stays will be charged at £250.00
Mileage charged at £0.50 per mile
STANDARD COVER TYPES FOR BREAK FIX MAINTENANCE
Monday – Friday 9am – 5.30pm – Category 1 fault*
1 hour remote response, 8 business hour 2nd/3rd line response – Category 2 fault**
2 hour remote response, 12 business hour 2nd/3rd line response – Category 3 TAC/AMC***
4 hour remote response, 24 business hour 2nd/3rd line response
CTECH 24×7 Support (24 x 7 excluding bank holidays) – Category 1 fault*
1 hour remote response, 4 business hour 2nd/3rd line response – Category 2 fault**
1 hour remote response, 8 business hour 2nd/3rd line response – Category 3 TAC/AMC***
4 hour remote response, 24 business hour 2nd/3rd line response
Business hours are Monday to Friday, 8.30am to 17.30pm excluding bank holidays.
Response times are aggregate.
Response times are either remote engineering or onsite engineering depending on the required action as identified at the discretion of the assigned CTECH engineer.
*Category 1 – more than 50% of user outage or total loss of service.
**Category 2 – up to 50% of users affected or partial service interruption
***Category 3 – non supported
CTECH BUSINESS BESPOKE WEBSITE RENTAL & SERVICE AGREEMENT
CTECH Business Solution Limited, a company incorporated in England under no. 11505170 (“CBS”) and
Customer (“Client”) as stated on this quote.
Build and ongoing hosting and support of your website
CTECH is a provider of website and digital development services and consultancy to businesses and other organisations.
The Client is a business, organisation or individual commissioning a website and support services from CBS.
The parties agree that CBS will provide the Client with a website support service based on the WordPress open source CMS, and configured to reflect the specific needs of the Client (“the Service”) on the terms and conditions set out in this Agreement. The Service will enable the Client to maintain his / her own website, within the remit of what is controlled via the technology provided by CBS.
DURATION AND ADDITIONAL SERVICES
This Agreement shall commence on the date at which the website goes live and shall continue for an initial eighteen-month period and thereafter from month to month unless terminated in accordance with Clause 9 of the CTECH Business Solutions Limited Standard Terms and Conditions.
From time to time CBS may make the Client aware of new services that it can offer the Client in addition to the Service and the cost of those additional services. If the Client wishes to be supplied with those additional services, they can be purchased and delivered as part of the Services on the terms and conditions set out in this Agreement save as to the fee set out in the ordeer form, which shall be amended to reflect the cost of any additional services and will be noted in an Addendum to this contract.
WARRANTIES AND UNDERTAKINGS
In consideration of the Client paying CBS as stated in 8, CBS hereby undertakes and warrants that it shall: Provide a Service to the Client, guaranteeing a website and access to their technologies and support team in order to allow the Client to manage the ongoing maintenance of their website.Maintain and provide a fully functional service with appropriate devotion of time and with such due skill, diligence, care and attention, so that the Client can maintain the website using their technology.Maintain a robust technical solution to host the shared service (CMS), providing a high level of redundancy in order to limit the possibility of technical outages caused either by hardware failures or increased levels of pressure incurred due to bandwidth or traffic considerations.
CBS shall host all web builds and underlying data / databases within the United Kingdom (UK) and / or the European Union (EU) region and will not transfer any data outside of this area unless permission is specifically sought from the client.CBS will undertake the role of processor for any data that is processed as part of the webservices delivered to the Client and will implement and manage all data in accordance with GDPR guidelines.
The Client will be the Controller of data and will be responsible for making sure GDPR is being adhered to.Provide all reasonable technical support to the Client using their service and, in the event of any technical problem, use its best endeavours to correct such problem as soon as is practicable.Provide all reasonable content support to the Client using their service and use its best endeavours to help implement all reasonable content change requests as soon as is practicable. CBS reserves the right to limit content management where reasonable usage by the client regularly exceeds two hours per month and will where the client requires this seek to implement a custom commercial arrangement to facilitate additional support time.
Maintain appropriate security measures to protect the data collected on a website or stored in a database from access by any third parties and only to deal with such data in accordance with the policies set out and agreed with the Client;
Maintain and comply in all material (2) respects with all applicable Data Protection registration (including without limitation the Data Protection Act 1998) and all other necessary licenses and contents in order to enter into and perform its obligations hereunder; and
Provide a robust hosting platform that gives clients a minimum 99% uptime of solutions month on month.
CBS will not take responsibility for any search engine rankings or optimisation and maintenance of existing rankings and ranking positions and will not be held responsible for the impact of any changes in rankings that occur after implementation of a web solution, unless in a situation where a specific search engine optimisation (SEO) service has been agreed separately from this agreement.
CBS shall design, implement and test the correct functioning of the Service to the satisfaction of the Client before the launch date and shall monitor the functioning of the shared Service at intervals thereafter throughout the course of this Agreement.
ICBS will not be held liable for any changes made to the site by third parties which cause it to cease functioning as intended and reserve the right to charge a fee to the client to correct any breakages caused by the third party.
OBLIGATIONS OF THE CLIENT
The Client will be responsible for providing content to CBS in electronic form and/or inputting content into and maintaining the website.
The Client hereby agrees that they are wholly and exclusively responsible for the content of the site.
The Client shall indemnify CBS against all liabilities and expenses (including reasonable legal costs) incurred by CBS in relation to a claim that the use by CBS of the content supplied by the Client knowingly infringes the intellectual property rights of any person.
The Client will pay CBS a monthly service fee as specified in the Order Form, payable from the point at which the site is ready to go live.
Amounts mentioned in this Agreement are exclusive of VAT, which shall be charged in addition and at the appropriate rate.
CBS will not put the website live until the first monthly payment has been received or until receipt of confirmation that the direct debit has been setup.
At any stage of the contract, CBS may increase the monthly charge for the Services. Clients will be informed of any proposed increase three months in advance of it being applied.
If monthly payments are not made in a timely manner, then CBS reserve the right to remove the website from live until such time as the payments are resumed.
Monthly payments shall commence when the website is put ‘live’ or three months after this contract is signed if this comes first.
Both parties will use reasonable endeavours to ensure that the content of the website for the Client and any material relating thereto will not include any information or material that infringes the rights of any third party or which is illegal, or the accessing, holding, transmitting or supplying of which would be a criminal offence or otherwise unlawful.
LIMITATIONS OF LIABILITY
Neither party shall be liable to the other in contract, tort (including negligence) or otherwise for any special loss or indirect loss of profits, business or anticipated savings, or for any indirect or consequential loss or damage suffered by the other.
Neither party excludes or restricts liability for death or personal injury resulting from negligence.
CBS will not be liable for any material or financial impact on the Client’s business or sales from the implementation of a website for the Client, and will not be liable for any material changes in appearance or placement or ranking within search engine listings.
CBS will not be considered in default or liable under this Agreement if it fails to perform any of its duties as a result of an act of God, act of government or state, civil commotion, embargo, epidemic, fire, flood, insurrection, war, disablement or disruption to the telecommunications network or any other reason beyond CBS’ control (“Force Majeure”).
In the event of Force Majeure, CBS will use reasonable endeavours to overcome such delays.
If the Force Majeure circumstance continues for a consecutive period of 4 weeks or more, either party may give notice to the other to forthwith terminate this Agreement.
If any dispute arises out of this Agreement the parties will use all reasonable endeavours to settle it by mediation in accordance with the Centre for Dispute Resolution (CEDR) Model Mediation Procedure.
To initiate mediation a party must give notice, in writing, to the other party requesting mediation. Such notice to be given in accordance with Clause 15. A copy of the notice should be sent to CEDR.
Each party shall keep secret and treat as confidential all information obtained from the other and shall not disclose such information to any person other than its employees, agents, sub-contractors and professional advisers where such disclosure is required for the performance of the party’s obligations or any dispute arising under this Agreement. This clause shall not extend to information which was already in the lawful possession of a party prior to this Agreement which is already public knowledge or becomes so subsequently (other than as a result of a breach of this clause) or which is trivial or obvious. The obligations of confidentiality under this clause shall survive any termination of this Agreement.
Each party agrees that it will not issue any news release or other communication about this Agreement and the CBS service without the prior approval of the other party, such approval not to be unreasonably withheld or delayed.
ENTIRE AGREEMENT AND VARIATIONS
This agreement constitutes the entire agreement between the parties and supersedes any previous accord, understanding or agreement, express or implied. Each party confirms that it has not relied upon any representation not recorded in this Agreement inducing it to enter into this Agreement (provided always that nothing in this Agreement shall exclude any liability of either party for pre-contractual statements or representations made fraudulently). No variation of this Agreement shall be valid unless it is in writing, refers specifically to this Agreement and is duly executed by the authorised representatives of both parties on or after the date of this Agreement.
No forbearance or delay by either party in enforcing its respective rights will prejudice or restrict the rights of that party, and no waiver of any such rights or of any breach of any contractual terms will be deemed to be a waiver of any other right of any later breach.
Either party shall be entitled to terminate this Agreement effective at the end of the initial 18 month period by three months written notice to the other party for any reason but also if that other party commits any material breach of this Agreement and, in the case of a breach capable of remedy, fails to remedy it within 21 days after receipt of a written notice giving full particulars of the breach and requiring it to be remedied;
Either party shall be entitled to terminate this Agreement forthwith by notice in writing to the other in the event that the other is involved in legal proceedings concerning its solvency, or ceases or threatens to cease trading, or commits an act of bankruptcy or is adjudicated bankrupt or enters into liquidation, whether compulsory or voluntary, other than for the purposes of a solvent amalgamation or reconstruction, or makes any arrangement with its creditors or petitions for an administration order or has a receiver or manager appointed over all or any part of its assets or generally becomes unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or equivalent circumstances occur in any jurisdiction.
Upon termination of the Agreement CBS shall, if required, return to the Client all records or other such materials relating to the business or operation of the Client, which are in the possession of CBS.
A person who is not a party to this Agreement may not enforce any of its terms under the Contracts (Rights of Third Parties) Act 1999.
INTELLECTUAL PROPERTY RIGHT INDEMNITY
Each party shall indemnify the other against all liabilities and expenses (including reasonable legal costs) incurred by the other in relation to a claim that the use by that other of any material prepared by the first knowingly infringes the intellectual property rights of any person.
The intellectual property of any generic content (sourced from CBS technologies or content), and the full functionality design and content of CBS technologies, either created by or provided by CBS, is solely retained by CBS. The Client waives all rights to any claims to these.
The intellectual property of the design, structure, aesthetic, functionality and any other content provided by the Client to CBS, or uploaded by the Client to CBS’s technologies, as part of the bespoke website and any data contained within the website, shall be solely retained by the Client. CBS waives all rights to any claims to these.
Any notice given under this Agreement by either party to the other shall be in writing and shall be delivered personally or by first class post (if posted in the country of the addressee) or by airmail (if posted outside of the country of the addressee). In the case of first-class post, delivery shall be deemed to take place three working days after the date of posting. In the case of airmail delivery shall be deemed to take place seven working days after posting. Notices shall be delivered or posted to the addressee of the parties given above or to any other address notified in substitution and in accordance with this clause on or after the date of this Agreement.
This Agreement shall be governed by English Law and the parties agree that the English Courts shall have exclusive jurisdiction to settle any dispute arising out of or in connection with the Agreement.