Microsoft NCE Terms – Annual

To reflect the changes, we require all Information Solutions customers to confirm agreement to the revised NCE terms and conditions by 26 June 2022.

Please read the below terms and conditions and submit the form at the bottom.

THIS AGREEMENT is made on the day the customer confirms agreement. The agreement is between

(1) Information Solutions Ltd incorporated and registered in England and Wales with company number 04798672 whose address is The Pump House, Shrewsbury, SY1 2DP (the “Supplier”); and

(2) The Customer by confirming acceptance by entering their name, address and confirming send to Information Solutions.

BACKGROUND

  • The Supplier is in the business of providing the supply of Office 365 software.
  • The Customer agrees to obtain, and the Supplier agrees to provide the Software on the terms set out in this agreement.

IT IS AGREED as follows:

  1. DEFINITIONS AND INTERPRETATIONS
    • Definitions
  • Affiliate” means in relation to a party, any entity that directly or indirectly controls, is controlled by, or is under common control with that party from time to time.
  • AML Laws” means:

(a) the UK Terrorism Act 2000, Anti-Terrorism Crime and Security Act 2001, Proceeds of Crime Act 2002, Serious Organised Crime and Police Act 2005 and the Money Laundering Regulations 2007 and

(b) all law or regulation relating to the same subject matter which is now or from time to time in force in any jurisdiction which may be applicable to the parties or to the implementation of this agreement.

  • Anti-Corruption Laws” means:

(a) the United Kingdom Bribery Act 2010,

(b) the U.S. Foreign Corrupt Practices Act 1977, and

(c) all other anti-corruption or anti-bribery laws and regulations now or from time to time in force in any jurisdiction which may be applicable to the parties or to the implementation of this agreement.

  • Applicable Laws” means all applicable laws, statutes, regulations and codes from time to time in force.
  • Business Day” means a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
  • Business Hours” means the period from 9.00 am to 5.30 pm on any Business Day.

Change Order” has the meaning given in Clause 6.1;

Charges” means the sums payable for the Services as set out in Schedule 1

Control” has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression “Change of Control” shall be construed accordingly.

Controller” means the individual or organisation who alone or jointly with others, determines the purposes and means of processing personal data.

  • Customer’s Equipment” means any equipment, including tools, systems, cabling or facilities, provided by the Customer, its agents, subcontractors or consultants which is used directly or indirectly in the supply of the Software including any such items specified in Schedule 1;
  • Customer Materials” means all documents, information, items and materials in any form, whether owned by the Customer or a third party, which are provided by the Customer to the Supplier in connection with the supply of the Software.

Data Protection Legislation” means the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications) and the guidance and codes of practice issued by the relevant data protection or supervisory authority and applicable to a party.

  • Deliverables” means any output of the Software to be provided by the Supplier to the Customer as specified in Schedule 1 and any other documents, products and materials provided by the Supplier to the Customer in relation to the Software (excluding the Supplier’s Equipment).
  • Improper Act” means fraud, gross negligence, a criminal act carrying a custodial sentence, dishonesty, wilful misconduct, wilful concealment, negligence, breach of fiduciary duty or breach of Anti-Corruption Laws or AML Laws.

Intellectual Property Rights” means patents, rights to inventions, copyright and neighbouring and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;

“Licence Schedule” means the software and programmes listed in Schedule 1

  • “Personal Data” means any information relating to an identified or identifiable data subject.
  • “Personal Data Breach” means a breach of security leading to the accidental or unlawful destruction loss, alteration, unauthorised disclosure of, or access to, personal data transmitted, stored or otherwise processed.
  • “Processing” means any operation or set of operations which is performed on personal data or sets of personal data whether or not by automated mean, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
  • “Processor” means an individual or organisation which processes data on behalf of the controller
  • “Software” means the programme details listed in Schedule 1 including any modifications or new releases.

Supplier’s Equipment” means any equipment, including tools, systems, cabling or facilities, provided by the Supplier to the Customer and used directly or indirectly in the supply of the Software including any such items specified in Schedule 1 but excluding any such items which are the subject of a separate agreement between the parties under which title passes to the Customer.

Term” has the meaning given to it in Clause 2.1(Commencement and Duration).

  • UK Data Protection Legislation” means all applicable data protection and privacy legislation in force from time to time in the UK including the UK General Data Protection Regulation (UKGDPR); 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.

VAT” means value added tax or any equivalent tax chargeable in the UK.

  • Clause, Schedule and paragraph headings shall not affect the interpretation of this agreement.
  • A “person” includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
  • The Schedules form part of this agreement and shall have effect as if set out in full in the body of this agreement. Any reference to this agreement includes the Schedules.
  • A reference to a “company” shall include any company, corporation or other body corporate, wherever and however incorporated or established.
  • A reference to an “entity” includes a general partnership, limited partnership, limited liability partnership, company, corporation, joint venture, limited liability company, trust, business cooperative or association.
  • Unless the context otherwise requires, words in the singular shall include the plural and, in the plural, shall include the singular.
  • Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
  • This agreement shall be binding on, and enure to the benefit of, the parties to this agreement and their respective personal representatives, successors and permitted assigns, and references to any party shall include that party’s personal representatives, successors and permitted assigns.
  • A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this agreement.
  • A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this agreement under that statute or statutory provision.
  • Unless the context otherwise requires, any reference to European Union law that is directly applicable or directly effective in the UK at any time is a reference to it as it applies in England and Wales from time to time including as retained, amended, extended, re-enacted or otherwise given effect on or after 11pm on 31 January 2020.
  • A reference to “writing” or “written” includes email.
  • Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
  • A reference to “this agreement” or to any other agreement or document referred to in this agreement is a reference of this agreement or such other agreement or document, in each case as varied from time to time.
  • References to clauses and Schedules are to the clauses and Schedules of this agreement and references to paragraphs are to paragraphs of the relevant Schedule.
  • Any words following the terms “including”, “include”, “in particular”, “for example” or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
  1. Commencement and duration
    • This agreement shall commence on the date the customer enters their name and address and shall continue, unless terminated earlier in accordance with Clause 13 (Termination (the “Term”).
    • The Supplier shall provide the Software to the Customer in accordance with this agreement during the Term.
  2. Supplier’s responsibilities
    • The Supplier shall use reasonable endeavours to supply the Software to the Customer, in accordance with this agreement in all material respects.
    • The Supplier shall use reasonable endeavours to meet any performance dates specified in Schedule 1, but any such dates shall be estimates only and time for performance by the Supplier shall not be of the essence of this agreement.
    • The Supplier shall appoint a manager for the Software, such person as identified in Schedule 1. That person shall have authority to contractually bind the Supplier on all matters relating to the Software (including by signing Change Orders).  The Supplier shall use all reasonable endeavours to ensure that the same person acts as the Supplier’s manager throughout the term of this agreement but may replace that person from time to time where reasonably necessary in the interests of the Supplier’s business.
  3. Customer’s obligations
    • The Customer shall:
      • co-operate with the Supplier in all matters relating to the supply of the Software.
      • appoint a manager for the supply of the Software, such person as identified in Schedule 1. That person shall have the authority to contractually bind the Customer on matters relating to the supply of the Software (including by signing Change Orders).
      • provide, for the Supplier, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, access to the Customer’s premises, office accommodation, data and other facilities as reasonably required by the Supplier including any such access as is specified in Schedule 1.
      • provide to the Supplier in a timely manner all documents, information, items and materials in any form (whether owned by the Customer or third party) required under Schedule 1 or otherwise reasonably required by the Supplier in connection with the supply of the Software and ensure that they are accurate and complete in all material respects.
      • ensure that all the Customer’s Equipment is in good working order and suitable for the purposes for which it is used in relation to the supply of the Software and conforms to all relevant United Kingdom standards or requirements.
      • obtain and maintain all necessary licences and consents and comply with all relevant legislation as required to enable the Supplier to provide the Software, including in relation to the installation of the Supplier’s Equipment, the use of all Customer Materials and the use of the Customer’s Equipment insofar as such licences, consents and legislation relate to the Customer’s business, premises, staff and equipment, in all cases before the date on which the supply of the Software are to start.
      • keep and maintain the Supplier’s Equipment in good condition and shall not dispose of or use the Supplier’s Equipment other than in accordance with the Supplier’s written instructions or authorisation; and
    • If the Supplier’s performance of its obligations under this agreement is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees, then, without prejudice to any other right or remedy it may have, the Supplier shall be allowed an extension of time to perform its obligations equal to the delay caused by the Customer.
  4. Non-solicitation
    • The Customer shall not and shall procure that none of its Affiliates shall not, without the prior written consent of the Supplier, at any time during the Term to the expiry of 6 months after the termination or expiry of this agreement, solicit or entice away from the Supplier or employ or attempt to employ any person who is, or has been, engaged as an employee, consultant or subcontractor of the Supplier in the provision of the Services.
  5. Change control
    • Either party may propose changes to the scope or execution of the supply of the Software, but no proposed changes shall come into effect until a Change Order has been signed by both parties. A Change Order shall be a document setting out the proposed changes and the effect that those changes will have on:
      • the supply of the Software.
      • the Supplier’s existing charges.
      • the timetable for the supply of the Software; and
      • any of the terms of this agreement.
    • If the Supplier wishes to make a change to the supply of the Software, it shall notify the Customer in writing.
    • If the Customer wishes to make a change to the supply of the Software:
      • it shall notify the Supplier and provide as much detail as the Supplier reasonably requires of the proposed changes, including the timing of the proposed changes; and
      • the Supplier shall, as soon as reasonably practicable after receiving the information at Clause 3.1 provide a draft Change Order to the Customer.
    • If the parties:
      • agree to a Change Order, they shall sign it and that Change Order shall amend this agreement; or
    • The Supplier may charge for the time it spends on preparing and negotiating Change Orders which implement changes proposed by the Customer pursuant to Clause 2 on a time and materials basis at the Supplier’s daily rates.
  6. Charges, payment AND REPORTING
    • In consideration of the supply of the Software by the Supplier, the Customer shall pay the Charges.

7.1.2.  pricing for the supply of the Software is subject to change and the Customer will be  notified 2 weeks before the annual renewal of this agreement of the new prices.

  • Where the Charges are calculated on a time and materials basis:
    • the Supplier’s daily fee rates for each individual person as set out in Schedule 2 are calculated on the basis of an 8 hour day, worked during Business Hours.
    • the Supplier shall be entitled to charge an overtime rate of 20 percent of the daily fee rate on a pro rata basis for any time worked by individuals whom it engages on the supply of the software outside Business Hours, Monday to Friday and an overtime rate of 200% of the daily rate for any time worked on Saturday, Sunday and Bank Holidays.
  • The Charges exclude the following costs which shall be payable by the Customer monthly in arrears, following submission of an appropriate invoice and payable within14 days of that invoice:
    • the cost of hotel, subsistence, travelling and any other ancillary expenses reasonably incurred by the individuals whom the Supplier engages in connection with the Services.
    • printing costs incurred in connection with printed materials requested by the Customer in connection with the supply of the Software; and
    • the cost to the Supplier of any materials or services procured by the Supplier from third parties for the provision of the supply of the Software as such items and their cost are set out in Schedule 1 and approved by the Customer in advance from time to time.
  • Where the Charges are calculated on a time and material basis the Supplier may increase the Charges on an annual basis with effect from each anniversary of the date of this agreement in line with the percentage increase in the Retail Prices Index in the preceding 12 month period, and the first such increase shall take effect on the first anniversary of the date of this agreement and shall be based on the latest available figure for the percentage increase in the Retail Prices Index.
  • The Supplier shall invoice the Customer for the Charges at the intervals specified in Schedule 1..
  • The Customer shall pay each invoice submitted to it by the Supplier within 14 days of receipt, to a bank account nominated in writing by the Supplier from time to time save in respect of the Fixed Price which shall be payable in accordance with Schedule 1.
  • Without prejudice to any other right or remedy that it may have, if the Customer fails to pay the Supplier any sum due under this agreement on the due date:
    • the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this Clause 7.1 will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
    • the Supplier may suspend all or part of the supply of the Software until payment has been made in full.
    • the goods will remain in the ownership of the Supplier and the Customer will only own the goods when full payment has been made.
  • All sums payable to the Supplier under this agreement:
    • are exclusive of VAT, and the Customer shall in addition pay an amount equal to any VAT chargeable on those sums on delivery of a VAT invoice; and
    • shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
  • The Customer shall provide the reporting information set out in, and in accordance with, Schedule 1 (Software Licences and Reporting Information) to enable, inter alia, the Supplier to calculate and verify the Charges.
  1. Intellectual property rights
    • In relation to the Deliverables:
      • the Supplier and its licensors shall retain ownership of all Intellectual Property Rights in the Deliverables, excluding the Customer Materials.
      • the Supplier grants the Customer, or shall procure the direct grant to the Customer of, a fully paid-up, worldwide, non-exclusive, royalty-free licence during the term of this agreement to copy and modify the Deliverables (excluding the Customer Materials) for the purpose of receiving and using the Services and the Deliverables in its business; and
      • the Customer shall not sub-license, assign or otherwise transfer the rights granted in Clause 1.2.
    • In relation to the Customer Materials, the Customer:
      • and its licensors shall retain ownership of all Intellectual Property Rights in the Customer Materials; and
      • grants the Supplier a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify the Customer Materials for the term of this agreement for the purpose of providing the supply of the Software to the Customer.
    • The Supplier:
      • warrants that the receipt, use of the Software and the Deliverables by the Customer shall not infringe the rights, including any Intellectual Property Rights, of any third
      • shall, subject to Clause 12 (Limitation of Liability), indemnify the Customer in full against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by the Customer arising out of or in connection with any claim brought against the Customer for actual or alleged infringement of a third party’s Intellectual Property Rights, to the extent that the infringement or alleged infringement arises out of or in connection with the receipt, use or supply of the Software and the Deliverables in accordance with this agreement; and
      • shall not be in breach of the warranty at Clause 3.1 and the Customer shall have no claim under the indemnity at Clause 8.3.2 to the extent the infringement arises from:
        • the use of the Customer Materials in the development of, or the inclusion of the Customer Materials in any Deliverable.
        • any modification of the Deliverables or Services, other than by or on behalf of the Supplier; and
        • compliance with the Customer’s specifications or instructions, where infringement could not have been avoided while complying with such specifications or instructions and provided that the Supplier shall notify the Customer if it knows or suspects that compliance with such specification or instruction may result in infringement.
      • The Customer:
        • warrants that the receipt and use of the Customer Materials in the performance of this agreement by the Supplier, its agents, subcontractors or consultants shall not infringe the rights, including any Intellectual Property Rights, of any third party; and
        • shall indemnify the Supplier in full against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by the Supplier arising out of or in connection with any claim brought against the Supplier, its agents, subcontractors or consultants for actual or alleged infringement of a third party’s Intellectual Property Right, to the extent that the infringement or alleged infringement arises out of or in connection with the receipt or use in the performance of this agreement of the Customer Materials in accordance with this agreement.
      • If either party (the Indemnifying Party) is required to indemnify the other party (the Indemnified Party) under this Clause 8 (Intellectual Property Rights), the Indemnified Party shall:
        • notify the Indemnifying Party in writing of any claim against it in respect of which it wishes to rely on the indemnity at Clause 3.2 or Clause 8.4.2 (as applicable) (IPRs Claim);
        • allow the Indemnifying Party, at its own cost, to conduct all negotiations and proceedings and to settle the IPRs Claim, always provided that the Indemnifying Party shall obtain the Indemnified Party’s prior approval of any settlement terms, such approval not to be unreasonably withheld.
        • provide the Indemnifying Party with such reasonable assistance regarding the IPRs Claim as is required by the Indemnifying Party, subject to reimbursement by the Supplier of the Indemnified Party’s costs so incurred; and
        • not, without prior consultation with the Indemnifying Party, make any admission relating to the IPRs Claim or attempt to settle it, provided that the Indemnifying Party considers and defends any IPRs Claim diligently, using competent counsel and in such a way as not to bring the reputation of the Indemnified Party into disrepute.
  1. Compliance with laws and policies
    • In performing its obligations under this agreement, the Supplier shall comply with Applicable Laws; and
    • Changes to the supply of the Software required as a result of changes to the Applicable Laws shall be agreed via the change control procedure set out in Clause 6 (Change Control).
  2. Data Protection
    • Both parties will comply with all applicable requirements of the Data Protection Legislation. This Clause 10 (Data Protection) is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.
    • The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the controller, and the Supplier is the processor.
    • Without prejudice to the generality of Clause 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 the Supplier for the duration and purposes of this agreement.
    • Without prejudice to the generality of Clause 1, the Supplier shall, in relation to any personal data processed in connection with the performance by the Supplier of its obligations under this agreement:
      • process that personal data only on the documented written instructions of the Customer unless the Supplier is required by Applicable Law to otherwise process that personal data. Where the Supplier is relying on the laws of a member of the European Union or European Union law as the basis for processing personal data, the Supplier shall promptly notify the Customer of this before performing the processing required by the Applicable Law unless the Applicable Law prohibits the Supplier from so notifying the Customer.
      • 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);
      • without prejudice to Clause 11 (Confidentiality), ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential; and
      • not transfer any personal data outside of the European Economic Area unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled:
        • the Customer or the Supplier has provided appropriate safeguards in relation to the transfer.
        • the data subject has enforceable rights and effective legal remedies.
        • the Supplier complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and
        • the Supplier complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the personal data.
      • 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.
      • notify the Customer without undue delay on becoming aware of a personal data breach.
      • without prejudice to Clause 1 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
      • maintain complete and accurate records and information to demonstrate its compliance with this Clause 10 (Data Protection) and immediately inform the Customer if, in the opinion of the Supplier, an instruction infringes the Data Protection Legislation.
    • The Customer does not consent to the Supplier appointing any third-party processor of Personal Data under this agreement.
    • Either party may, at any time on not less than 30 days’ notice, revise this Clause 10 (Data Protection) 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).
  3. Confidentiality
    • Each party undertakes that it shall not at any time during this agreement, and for a period of 2 years after termination or expiry of this agreement, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as permitted by Clause 2.
    • Each party may disclose the other party’s confidential information:
      • to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with this agreement. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this Clause 11 (Confidentiality); and
      • as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
    • No party shall use any other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this agreement.
  1. LIMITATION OF LIABILITY

12.1 The restrictions on liability in this clause 12 apply to every liability arising under or in connection with this agreement including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.

12.2 Neither party may benefit from the limitations and exclusions set out in this clause in respect of any liability arising from its deliberate default.

12.3 Nothing in this agreement:

12.3.1 shall limit or exclude the Supplier’s liability for:

(a) death or personal injury caused by its negligence, or the negligence of its personnel, agents or subcontractors.

(b) fraud or fraudulent misrepresentation.

(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession) any other liability which cannot be limited or excluded by applicable law; or

12.3.2 shall limit or exclude the Supplier’s liability under clause 8.4.2(IPR indemnity) or clause 10 (Data Protection).

12.4 Subject to clause 12.3:

12.4.1 neither party to this agreement shall have any liability to the other party for any indirect or consequential loss arising under or in connection with this agreement.

12.4.2 the Supplier’s total liability to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with this agreement shall be limited to £1,000,000; and

12.4.3 The Customers total liability to the Supplier, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with this agreement shall be limited to £1,000,000.

12.5 Notwithstanding clause 12.4.1, the losses for which the Supplier assumes responsibility, and which shall (subject to clause 12.4.2) be recoverable by the Customer include:

12.5.1 sums paid by the Customer to the Supplier pursuant to this agreement, in respect of any services not provided in accordance with the terms of this agreement.

12.5.2 wasted expenditure.

12.5.3 additional costs of procuring and implementing replacements for, or alternatives to, the Services, including consultancy costs, additional costs of management time and other personnel costs and costs of equipment and materials.

12.5.4 losses incurred by the Customer arising out of or in connection with any claim, demand, fine, penalty, action, investigation or proceeding by any third party (including any subcontractor, Supplier personnel, regulator or customer of the Customer) against the Customer caused by the act or omission of the Supplier.

12.5.6 anticipated savings; and

12.6 No amount awarded or agreed to be paid under the indemnity in clause 8.4.2 (IPR indemnity) or clause 10. (Data Protection) shall count towards the cap on the Supplier’s liability under clause 12.4.2.

 

  1. Termination
    • Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:
      • the other party commits a material breach of any term of this agreement and (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so.
      • the other party repeatedly breaches any of the terms of this agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement.
      • the other party or any Affiliate of it, or any director or officer of the other party or any of its Affiliates, commits an Improper Act.
      • the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1)(e) or 123(2) of the Insolvency Act
      • 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 any of its creditors other than (being a company) 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.
      • 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 (being a company) 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.
      • an application is made to court, or an order is made, for the appointment of an administrator, or a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party (being a company, partnership or limited liability partnership)
      • the holder of a qualifying floating charge over the assets of that other party (being a company or limited liability partnership) has become entitled to appoint or has appointed an administrative receiver.
      • a person becomes entitled to appoint a receiver over all or any of the assets of the other party or a receiver is appointed over all or any of the assets of the other party.
      • 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
      • any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in Clause 1.3 to Clause 13.1.9 (inclusive); or
      • the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
      • Either party may terminate this agreement on 3 calendar months’ written notice, expiring on the anniversary of the commencement date subject to neither party being able to give such notice in the 3 months prior to the anniversary date.
    • Without affecting any other right or remedy available to it, the Supplier may terminate this agreement with immediate effect by giving written notice to the Customer if:
      • the Customer fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment: or
      • there is a Change of Control of the Customer.
  1. Obligations on termination, EXPIRY and survival
    • Obligations on termination or expiry

On termination or expiry of this agreement:

  • the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of the supply of Software supplied but for which no invoice has been submitted, the Supplier may submit an invoice, which shall be payable immediately on receipt.
  • the Customer shall, return all of the Supplier’s Equipment. If the Customer fails to do so, then the Supplier may enter the Customer’s premises and take possession of the Supplier’s Equipment. Until they have been returned or repossessed, the Customer shall be solely responsible for their safe keeping; and
  • the Supplier shall on request return any of the Customer Materials not used up in the provision of the Services.
  • Obligations on Survival
    • On termination or expiry of this agreement, the following clauses shall continue in force: Clause 1 (Definitions and Interpretation), Clause 5 (Non-solicitation), Clause 8 (Intellectual Property Rights), Clause 11 (Confidentiality), Clause 12 (Limitation of Liability), Clause 14 (Obligations on Termination), Clause 17 (Waiver), Clause 19 (Severance), Clause 21 (Conflict), Clause 26 (Multi-tiered Dispute Resolution Procedure), Clause 27 (Governing Law) and Clause 28 (Jurisdiction).
    • Termination or expiry of this agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination or expiry.
  1. Assignment and other dealings
    • This agreement is personal to the Customer and the Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under this agreement.
    • The Supplier may at any time assign, mortgage, charge, declare a trust over or deal in any other manner with any or all of its rights under this agreement, provided that the Supplier gives prior written notice of such dealing to the Customer.
  2. Variation

Subject to Clause 6 (Change Control), no variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

  1. Waiver
    • A waiver of any right or remedy under this agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
    • A failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under this agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.
    • A party that waives a right or remedy provided under this agreement or by law in relation to one party or takes or fails to take any action against that party, does not affect its rights in relation to any other party.
  2. Rights and remedies

The rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

  1. Severance
    • If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement.
    • If any provision or part-provision of this agreement is deemed deleted under Clause 1, the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
  2. Entire agreement
    • This agreement constitutes the entire agreement between any of the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
    • Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
  3. Conflict

If there is an inconsistency between any of the provisions of this agreement and the provisions of the Schedules, the provisions of this agreement shall prevail.

  1. No partnership or agency
    • Nothing in this agreement 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, or authorise any party to make or enter into any commitments for or on behalf of any other party.
    • Each party confirms it is acting on its own behalf and not for the benefit of any other person.
  2. Third party rights
    • Unless it expressly states otherwise, this agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.
    • The rights of the parties to rescind or vary this agreement are not subject to the consent of any other person.
  3. Notices
    • Any notice or other communication given to a party under or in connection with this agreement shall be in writing and shall be:
      • delivered by hand or by pre-paid first class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
      • sent by email to the address specified in Schedule 1.
    • Any notice or communication shall be deemed to have been received:
      • if delivered by hand, at the time the notice is left at the proper address.
      • if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or
      • if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this Clause 2.3 business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday, in the place of receipt.
    • This clause does not apply to the service of any proceedings or any documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
  4. Multi-tiered dispute resolution procedure
    • If a dispute arises out of or in connection with this agreement or the performance, validity or enforceability of it (Dispute) then the parties shall follow the procedure set out in this clause:
      • either party shall give to the other written notice of the Dispute, setting out its nature and full particulars (Dispute Notice), together with relevant supporting documents. On service of the Dispute Notice, the Customer and the Supplier shall attempt in good faith to resolve the Dispute.
      • if the Customer and the Supplier are for any reason unable to resolve the Dispute within 30 days of it being referred to them, the parties will attempt to settle it by mediation in accordance with the CEDR Model Mediation Procedure. Unless otherwise agreed between the parties, the mediator shall be nominated by CEDR. To initiate the mediation, a party must serve notice in writing (ADR notice) to the other party to the Dispute, requesting a mediation.  A copy of the ADR notice should be sent to CEDR.  The mediation will start not later than 30 days after the date of the ADR notice.
    • The commencement of mediation shall not prevent the parties commencing or continuing court proceedings in relation to the Dispute under Clause 28 (Jurisdiction) which clause shall apply at all times.
    • If the Dispute is not resolved within 30 days after service of the ADR notice, or either party fails to participate or to continue to participate in the mediation before the expiration of the said period of 30 days, or the mediation terminates before the expiration of the said period of 30 days, the Dispute shall be finally resolved by the courts of England and Wales in accordance with Clause 28 (Jurisdiction).
  5. Governing law

This agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.

  1. Jurisdiction

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

This agreement has been entered into on the date stated at the beginning.

Schedule 1

Subscription Terms

  • Customer may subscribe to Microsoft licenses on a Monthly or Annual term basis. The terms and conditions of Microsoft are expressly incorporated into this agreement and they can be viewed here :-https://sway.office.com/v3EaKbnEgB7EPHC6?ref=Link.
  • Not all licenses have monthly terms of which you will be advised before purchasing.
  • Applicable billing changes to accommodate new subscriptions or change request will be reflected on the next billing cycle.
  • Monthly and Annual subscriptions may be prorated on a monthly basis if appropriate or available.
  • Monthly term subscriptions in New Commerce Experience (NCE) are billed at a 20% premium over annual license of the same product type.
  • Seat counts can be adjusted upward on any commitment term but if more than 72 hours have elapsed since the order was placed or the subscription was renewed, seat counts cannot be decreased until the renewal of the subscription.
  • Seats added mid-month will be prorated and co-terminated with the original renewal date.
  • Mixing monthly and annual terms of the same product may result in different renewal dates based on the purchase date.
  • New subscription purchased will potentially have a unique renewal date.
  • Customer is committing to payment in full for all licenses included in monthly and annual subscriptions.
  • Transfer of a customer subscription to another NCE partner is not supported until the end of the subscription term.
  • Any decrements made upon renewal for monthly commitments during the middle of the month will not be reflected until the next billing cycle
  • Decrements made at renewal may result in a prorated credit which will reflect on the next billing cycle.

Subscription Cancellation

  • A seat-based subscription of any term length can be cancelled with Microsoft but only within the first 72 hours of the term. This cancellation must be provided within working hours giving enough time to process with Microsoft.
  • After that first 72 hours, no cancellation is possible; the customer will continue to be billed for the remainder of the term and will not receive a refund for any unused portion of the committed term.
  • Any decrements to the subscription must be made at subscription renewal.
  • Increments made to the subscription mid-term have 72 hours in which they can be reversed. Any increment reversed will receive a prorated refund if it is inside the 72 window of eligibility.
  • Early termination requires full payment of the remainder of the term of all subscriptions.

Subscription Renewals

  • This agreement will automatically renew on an annual basis, unless otherwise agreed upon by both parties.
  • Monthly subscriptions will automatically renew each month.
  • Decrements made after the 1st of the month may not reflect on invoice until the next invoicing period.
  • Customer has 72 hours from the renewal date of a subscription to make any seat changes or cancel the renewal.

Pricing

  • Pricing from Microsoft and Information Solutions is subject to change.
  • Annual commitments allow for price locking for the duration of the term.
  • Any increments made to annual commitments capture the price locking of the original subscription purchase.
  • Any pricing changes will be communicated before the automatic renewal of the this agreement.

SOFTWARE LICENCES AND REPORTING

 Software Licences

1.1. The Supplier has supplied to the Customer the software and licences specified on their monthly or annual agreement.

1.2 Reporting

 5.2.1 The Customer will report to the Supplier every 6 months the number of users it has for each of the software licenses set out in paragraph 1. of Schedule 1.


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