IT support contract

  1. Interpretation
    1. The definitions and rules of interpretation in this clause apply in these conditions.
      1. “Anytime IT Support Hours” The annual hours of Support Services provided under this Contract.
      2. “Business Day” Any day other than a Saturday, Sunday or public holiday in England and Wales.
      3. “Contract” the Customer’s Order, Disaster Recovery Plan and the IT Support Terms and Conditions.
      4. “Contract Term” the term of the Contract as detailed on the Order.
      5. “Cover Period” The date range covered between a start and end date declared on an individual invoice which falls between the Products and Support Services Start Date and the Products and Support Services End Date.
      6. “Customer Site” The addresses for the delivery, instalment or provision of Products and Support Services as detailed on the Order Form.
      7. “Customer” The person, firm or company specified on the Order to whom Datasharp has agreed to provide Products and Support Services to.
      8. “Datasharp” Means Datasharp UK Limited (Registered company number: 1807741) whose registered office is Woodlands Court, Truro Business Park, Cornwall, TR4 9NH, the employees of Datasharp UK Limited or its agents.
      9. “Disaster Recovery Plan” Planned actions to minimise the effect of a terminal event to the IT System including, without limitation, the Customer making regular backup copies of all of its data as set out on the Order.
      10. “Faulty Equipment” IT Equipment, Network Equipment or Peripheral Equipment which is not functioning correctly.
      11. “Force Majeure” Any circumstance not within a party’s reasonable control including, without limitation: lightning strike, flood, or other natural disaster; terrorist attack, civil war, civil commotion or riots, war; any law or any action taken by a government or public authority, including without limitation; collapse of buildings, fire, flood, explosion or accident; computer virus or denial of service attack; any labour or trade dispute, strikes, industrial action or lockouts; non-performance by suppliers or subcontractors; interruption or failure of utility and/or communications services.
      12. “Helpdesk” The email address to which notification of a Support Request should be sent by the Customer being IT@datasharp.co.uk and telephone number being 01872 266660, unless notified otherwise by Datasharp in writing.
      13. “Intellectual Property Rights” Intellectual property rights are patents, utility models, rights to inventions, copyright and related rights, trade marks and service marks, trade 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 preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, including all applications for (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.
      14. “IT Equipment” Including but not limited to Servers, Workstations including Desktop PCs, Laptop Computers, Apple Mac devices.
      15. “IT System” The equipment utilised by the Customer comprising of IT Equipment, Network Equipment, System Software and Peripheral Equipment.
      16. “Manufacturer” The original manufacturer of any component of the Products and Support Services.
      17. “Material Breach” A breach (including an anticipatory breach) which is not minimal or trivial in its consequences. In deciding whether any breach is material no regard shall be had as to whether it occurs by some accident, mishap, mistake or misunderstanding.
      18. “Network Equipment” Including but not limited to Switches, Routers, Gateways, Wireless Access Points, and Security Appliances.
      19. “Operating System Software” Microsoft operating systems, Microsoft server applications, Microsoft client applications, Apple Mac OS.
      20. “Order” The order for the purchase of the Products and Support Services as set out in the IT Support Order Form.
      21. “Peripheral Equipment” Other equipment including but not limited to mobile devices and printers.
      22. “Primary Contract Period” The period of time commencing from the Service Start Date for the duration of the Contract Term.
      23. “Primary Service Area” All mainland locations for the following postcode areas: TR , PL , EX1-4 , EX20 , EX23 , EX66.
      24. “Products” Being hardware or software as, agreed in the Contract, purchased, leased, rented or licenced by the Customer direct from Datasharp or Datasharp as an agent (including without limitation any part or parts of it).
      25. “Products and Support Services Start Date” The date on which the ordered Products and Support Services shall be available to the Customer as set out on the Order Form.
      26. “Response Time” The period detailed on the IT Support Order Form in which Datasharp will use reasonable endeavours to respond to a Customer Support Request by telephone or email.
      27. “Secondary Contract Period” The period of time commencing after the Primary Contract Period until the contract is terminated.
      28. “Support Request” A Support Request from the Customer qualifying for Support Services (to be determined by Datasharp).
      29. “Support Services” The support service, more particularly defined in clause 12, to be provided by Datasharp to the Customer.
      30. “The Datasharp Cloud” Datasharp’s fully managed virtual data centre.
      31. “Third Party Applications” Software, applications, systems or any other equipment of any third party.
      32. “VAT” Value Added Tax chargeable under English law for the current time and any similar additional tax – subject to governmental change.
      33. “Year” A calendar year.
    2. Clause, Schedule and paragraph headings shall not affect the interpretation of this Contract.
    3. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
    4. A reference to a company shall include any company, corporation or other corporate body, wherever and however incorporated or established.
    5. Unless the context otherwise requires, words in the singular shall include the plural and in the plural include the singular, the masculine includes the feminine and the neuter.
    6. A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this Contract under that statute or statutory provision as from time-to-time amended or re-enacted.
    7. A reference to writing or written includes faxes and e-mails.
    8. References to conditions and Schedules are to the conditions and Schedules of this Contract and references to paragraphs are to paragraphs of the relevant Schedule.
    9. If any provision in this Contract is found to be contrary to law or unenforceable for any reason that provision shall be deemed deleted and the remainder of this Contract shall remain in force.
    10. Any director or representative of the Customer will be deemed to be its authorised signatory and therefore guarantee the Customer’s acceptance of its obligations under this Contract.
  2. General
    1. Any quotation set out on the Order may be withdrawn or amended by Datasharp at any time by notice to the Customer.
    2. Each Order shall be deemed to be an offer by the Customer subject to these conditions. The Customer shall ensure that its Order is complete and accurate.
    3. By signing the Order, the Customer guarantees acceptance of its obligations under the Contract. No addition to, variation of, exclusion or attempted exclusion of any term of the Contract shall be binding on Datasharp unless in writing and signed by a Director of Datasharp. Datasharp reserves the right not to accept a Customer’s Order.
    4. In the event of cancellation by the Customer of any Order, Datasharp will be entitled to charge a cancellation fee of 100% of the value of the Products and Support Services if the Products and Support Services have been ordered from Datasharp’s suppliers, in addition to the price of any work carried out by Datasharp up to the date of cancellation. Any cancellation by the Customer after the Products and Support Services Start Date will be deemed a notice to terminate the Contract as per clause 9.
    5. Datasharp reserves the right to defer the date of delivery, or to terminate the Contract or reduce the amount of Products and Support Services ordered, if it is prevented from or delayed in carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including without limitation strikes, lock-outs or other industrial disputes (whether involving the workforce of Datasharp or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors (“Force Majeure Event”).
    6. Neither party shall be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure results from events, circumstances or causes beyond its reasonable control.
    7. If termination occurs under clause 2.5, all sums paid to Datasharp by the Customer under this Contract shall be refunded to the Customer, except that Datasharp shall be entitled to payment for all work undertaken before termination, provided that Datasharp takes all reasonable steps to mitigate the amount due.
    8. If either party is affected by Force Majeure they shall immediately notify the other party in full of the nature and extent of the circumstances.
    9. No failure or delay by a party to exercise any right or remedy provided under this Contract 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 such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
    10. The rights and remedies provided under this Contract are in addition to, and not exclusive of, any rights or remedies provided by law.
    11. If any provision or part-provision of this Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Contract.
    12. If any provision or part-provision of this Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
    13. This Contract constitutes the entire Contract between the parties and supersedes and extinguishes all previous Contracts, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
    14. Each party acknowledges that in entering into this Contract it does not rely on, and 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 Contract.
    15. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Contract.
    16. Nothing in this clause shall limit or exclude any liability for fraud.
    17. Datasharp 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 the Contract.
    18. The Customer shall not, without the prior written consent of Datasharp, assign, transfer, charge, sub-contract, or deal in any other manner with all or any of its rights or obligations under the Contract.
    19. No one other than a party to this Contract shall have any right to enforce any of its terms.
    20. Any notice or document given to a party under or in connection with this contract shall be in writing and shall be:
      1. delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office or its principal place of business; or
      2. sent by email to the email address provided by the other party.
    21. Any notice shall be deemed to have been received:
      1. if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
      2. if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Working Day after posting or at the time recorded by the delivery service;
      3. if sent by email, at the time of transmission or, if sent outside of the hours of 9.00 am to 5.00 pm on weekdays, 9.00 am on the next Working Day.
    22. This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution. For the purposes of this clause, “writing” shall not include e-mail.
    23. Datasharp may record telephone conversations with or without the use of a warning message.
    24. Datasharp may use these recordings as evidence of contracts entered into or in relation to disputes as well as for our on-going training and quality control programmes.
    25. It is the intention of the parties to settle amicably by negotiation all disagreements and differences of opinion on matters of performance, procedure and management arising out of this Contract.
    26. This Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
    27. 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 Contract or its subject matter or formation (including non-contractual disputes or claims).
    28. Datasharp reserves the right to vary this Contract subject to the following conditions:
      1. If any variation materially affects the pricing or performance of this Contract the Customer will have the right to terminate this Contract on 30 days’ written notice.
      2. Any variations will be published on Datasharp’s website at www.datasharp.co.uk/terms_and_conditions.
    29. The Customer may always access a copy of the prevailing terms and conditions from the website.
    30. The Customer hereby confirms that the Contract cannot be modified by its own terms and conditions of business.
    31. The following data protection definitions apply:
      1. the terms “data controller”, “data processor”, “data subject”, “Personal Data” and “processing” bear the respective meanings given them in the Data Protection Act 1998, and “data protection principles” means the eight data protection principles set out in Schedule 1 to that Act.
      2. data includes Personal Data.
      3. Customer Personal Data and Datasharp Personal Data mean any Personal Data provided by or on behalf of the Customer or Datasharp, respectively.
    32. Datasharp shall be permitted by the Customer to:
      1. carry out processing of any Customer Personal Data, when appropriate;
      2. implement appropriate technical and organisational measures to protect any Customer Personal Data against unauthorised or unlawful processing and accidental loss or damage by Datasharp employees,
      3. only transfer Customer Personal Data to countries outside the European Economic Area that ensure an adequate level of protection for the rights of the data subject unless requested by the Customer.
    33. The Customer shall ensure that it has the appropriate consent from any of its customers or employees to enable Datasharp to comply with its obligations in clauses 2.31 – 2.37.
    34. Datasharp shall promptly and fully notify the Customer in writing of any notices in connection with the processing of any Customer Personal Data, including subject access requests, and provide such information and assistance as the Customer may reasonably require.
    35. The Customer agrees and acknowledges that Datasharp is permitted to act as a data processor for the Customer’s data, rather than as a data controller, in respect of all such data processing activities which Datasharp carries out under this Contract.
    36. The Customer shall indemnify Datasharp against any losses, damages, costs (including legal fees) and expenses incurred by or awarded against Datasharp as a result of the Customer’s failure to comply with its obligations in clause 2.33.
    37. Except as expressly provided otherwise, this Contract does not transfer ownership of, or create any licences (implied or otherwise), in any Intellectual Property Rights in any (non-personal) data.
    38. Each party shall, during the Contract Term and thereafter, keep confidential all information and shall not use for its own purposes (other than implementation of this Contract) nor without the prior written consent of the other disclose to any third party (except its professional advisors or as may be required by any law or any legal or regulatory authority) any information of a confidential nature (including trade secrets and information of commercial value) which may become known to such party from the other party and which relates to the other party or any of its affiliates, unless such information is public knowledge or already known to such party at the time of disclosure, or subsequently becomes public knowledge other than by breach of this Contract, or subsequently comes lawfully into the possession of such party from a third party. Each party shall use its reasonable endeavours to prevent the unauthorised disclosure of any such information.
    39. All materials, equipment and tools, drawings, specifications and data supplied by Datasharp to the Customer shall at all times be and remain the exclusive property of Datasharp, but shall be held by the Customer in safe custody at its own risk and maintained and kept in good condition by the Customer until returned to Datasharp, and shall not be disposed of or used other than in accordance with Datasharp’s written instructions or authorisation.
    40. Clauses 2.38 – 2.39 shall survive termination of the Contract howsoever arising.
    41. Datasharp warrants that it is not the producer of the Products or any part thereof for the purposes of the Waste Electrical and Electronic Equipment Regulations 2006 as amended and bears no responsibility for the disposal of any part of the Products under the said regulations.
    42. No warranties of any kind are given by Datasharp in respect of the fitness, quality, or workmanship of the Products and Support Services. All warranties, conditions and other terms implied by statute or common law are excluded from the Contract to the fullest extent permitted by law.
    43. All other conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into this Contract or any collateral contract, whether by statute, common law or otherwise, are hereby excluded, including the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose and the use of reasonable skill and care.
    44. In the event that there is a fault with the Products and Support Services and the Products and Support Services are under warranty from their manufacturer, Datasharp will use reasonable endeavours to liaise with the manufacturer to request the Products and Support Services are repaired under the warranty.
    45. No representation or warranty is given by Datasharp that all Support Requests will be resolved, or will be resolved within a specified period of time.
    46. Any liability of Datasharp for non-delivery of the Products and Support Services shall in all circumstances be limited to replacing the Products and Support Services within a reasonable time or issuing a credit note to the Customer at the pro rata Contract rate against any invoice raised for such Products and Support Services.
    47. If Datasharp’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer (other than by reason of a Force Majeure Event under clauses 2.5 – 2.8), the Customer shall in all circumstances be liable to pay to Datasharp all reasonable costs, charges or losses sustained by it as a result, subject to Datasharp notifying the Customer in writing of any such claim it might have against the Customer in this respect.
    48. Datasharp shall not be liable to the Customer for any breach of any provision of this Contract caused by any reason outside its control or responsibility.
    49. Datasharp shall not be liable for any delay in the execution of work under this Contract howsoever caused.
    50. Except as expressly stated in clause 2.51
      1. Datasharp shall not in any circumstances have any liability for any losses or damages which may be suffered by the Customer (or any person claiming under or through the Customer), whether the same are suffered directly or indirectly or are special, included or consequential, and whether the same arise in contract, tort (including negligence) or otherwise howsoever, which fall within any of the following categories:
        1. special damage, even though Datasharp was aware of the circumstances in which such special damage could arise;
        2. loss of profits;
        3. loss of anticipated savings;
        4. loss of business opportunity;
        5. loss of or goodwill;
        6. loss of, or damage to (including corruption of), data including Customer data;
        7. or any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
      2. the Customer agrees that, in entering into this Contract, either it did not rely on any representations (whether written or oral) of any kind or of any person other than those expressly set out in this Contract or (if it did rely on any representations, whether written or oral, not expressly set out in this Contract) that it shall have no remedy in respect of such representations and (in either case) Datasharp shall not in any circumstances have any liability otherwise than in accordance with the express terms of this Contract,
      3. the total liability of Datasharp, whether in contract, tort (including negligence) or otherwise and whether in connection with this Contract or any collateral contract, shall in no circumstances exceed a sum equal to 6 months charges payable by the Customer under this Contract in the Year in which the liability arises or £5,000 whichever is the lesser.
    51. The exclusions in clause 2.50 shall apply to the fullest extent permissible at law but Datasharp does not exclude liability for:
      1. death or personal injury caused by the negligence of Datasharp, its officers, employees, contractors or agents;
      2. fraud or fraudulent misrepresentation;
      3. breach of the obligations implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of the Goods and Services Act 1982; or
      4. any other liability which cannot be excluded by law.
    52. Datasharp will not be liable for any loss of data experienced by the Customer irrespective of how the loss has occurred.
    53. If Datasharp applies any alteration to Products, in accordance with a specification submitted or prepared by the Customer or any other information provided by the Customer, the Customer shall indemnify and keep indemnified Datasharp against all losses, damages, costs, claims, demands, liabilities and expenses (including without limitation consequential losses, loss of profit and loss of reputation, and all interest, penalties and legal and other professional costs and expenses) awarded against or incurred by Datasharp in connection with, or paid or agreed to be paid by Datasharp in settlement of, any claim for infringement of any third party Intellectual Property Rights which results from Datasharp’s use of the Customer’s specification or such other information or any modification of the Products based on the Customer’s specifications.
    54. All Intellectual Property Rights in any works created by Datasharp (whether alone or jointly) in the course of providing the Support Services shall belong to Datasharp, and the Customer shall have no rights in respect of any of these works except as expressly granted under this Contract. The Customer shall sign all such other documents as Datasharp may from time to time require for the purpose of giving Datasharp the full benefit of the provisions of this clause 2.53.
    55. The Customer acknowledges that all Intellectual Property Rights used by or subsisting in the Products and Support Services are and shall remain the sole property of Datasharp or as the case may be any third party.
    56. Datasharp shall retain the property and copyright and any other Intellectual Property Rights in all documents supplied to the Customer in connection with the Contract and it shall be a condition of such supply that the contents of such documents shall not be communicated either directly or indirectly to any other person, firm or company without the prior written consent of Datasharp.
    57. Datasharp’s Intellectual Property Rights in, and relating to the Products and Support Services, shall remain the exclusive property of Datasharp, and the Customer shall not at any time make any unauthorised use of such Intellectual Property Rights, nor authorise or permit any of its agents or contractors or any other person to do so.
    58. In relation to the Software:
      1. the Customer acknowledges that it is buying only the right to use the software.
      2. nothing contained in these conditions shall be construed as an assignment of any Intellectual Property Rights in the Products and Support Services Software.
      3. the Customer shall be subject to the rights and restrictions imposed by the owner of the Intellectual Property Rights in the Software and shall comply with all licence Contracts, terms of use and registration requirements relating to them. Please refer to Datasharp’s web directory of Manufacturer’s products terms and conditions as detailed at www.datasharp.co.uk/terms_and_conditions. By signing this Contract the Customer agrees to all the Manufacturer’s terms and conditions.
    59. The Products and Support Services shall be at the risk of Datasharp until delivery to the Customer at the Customer Site if delivered by Datasharp.
    60. Where the Products and Support Services are not being financed through a lease, ownership of, or entitlement to use, the Products and Support Services shall pass to the Customer when Datasharp has received in full and in cleared funds all sums due in respect of:
      1. the Products and Support Services,
      2. all other sums which are or which become due to Datasharp from the Customer on any account.
    61. Where the Products and Support Services are not being financed through a lease, until ownership of the Products and Support Services has passed to the Customer under clause 2.59, the Customer shall:
      1. hold the Products and Support Services on a fiduciary basis as Datasharp’s bailee;
      2. store the Products and Support Services (at no cost to Datasharp) in appropriate conditions so that it remains readily identifiable as Datasharp’s property;
      3. not destroy, deface or obscure any identifying mark or packaging on or relating to the Products and Support Services,
      4. keep the Products and Support Services insured on Datasharp’s behalf for its full price against all risks with a reputable insurer to the reasonable satisfaction of Datasharp, ensure that Datasharp’s interest in the Products and Support Services is noted on the policy, and hold the proceeds of such insurance on trust for Datasharp and not combine them with any other money, nor pay the proceeds into an overdrawn bank account.
    62. The Customer’s right to possession, or use, of the Products and Support Services before ownership or entitlement to use has passed to it shall terminate immediately if any of the circumstances set out in clauses 2.5 – 2.8 arise or if the Customer encumbers, or in any way charges, the Products and Support Services.
    63. The Customer grants Datasharp, its agents and employees an irrevocable licence to enter at any time any premises where the Products and Support Services are or may be stored in order to inspect them, or where the Customer’s right to possession has terminated, to remove them. All costs incurred by Datasharp in repossessing the Products and Support Services shall be borne by the Customer.
    64. On termination of the Contract for any reason, Datasharp’s rights in clauses 2.59 – 2.63 shall remain in effect.
  3. Duration
    1. Subject to the rights of earlier termination set out in this Contract, the Contract shall continue in force from the Products and Support Services Start Date until Terminated.
    2. Prior to the termination of the Contract, the completion of the Primary Contracted Period of the contract will automatically transfer into the Secondary Contract Period.
    3. The Secondary Contract Period will continue indefinitely on an annual basis until terminated by the Customer or Datasharp.
    4. After the Contract has been terminated all contractual obligations of Datasharp and the Customer as herein detailed will no longer be enforceable (unless the context otherwise prescribes).
  4. Quantity and Description
    1. The quantity and description of the Products and Support Services shall be as set out in the Order.
    2. Datasharp reserves the right (but does not assume the obligation) to make any changes in the specification of the Products and Support Services which are required to conform with any applicable legislation or, where the Products and Support Services are to be supplied to the Customer’s specification, which do not materially affect their quality or performance. Where Datasharp is not the manufacturer of the Products and Support Services, Datasharp shall use reasonable endeavours to transfer to the Customer the benefit of any warranty or guarantee given by the manufacturer to Datasharp but shall have no liability to the Customer if it is unable to do so.
    3. All alterations to the Products ordered will be invoiced to the Customer in line with the terms and conditions set out in this contract.
  5. Prices
    1. The Price for the Products and Support Services shall be as stated in the Order.
    2. The Price for the Products and Support Services are based on the rate prevailing at the date of the Order and Datasharp may increase the price to cover any increases due to market conditions (including without limitation increases in foreign exchange rates relating to the Products and Support Services, or in labour, materials, supply or transportation or fuel costs) which affect Datasharp at the date of delivery.
    3. Datasharp reserves the right, by giving notice to the Customer at any time before delivery, to increase the price of such of the Products and Support Services which has not been delivered to reflect any increase in the cost to Datasharp which is due to any factor beyond the control of Datasharp (including without limitation any foreign exchange fluctuation, currency regulation, alteration of duties, change in legislation, significant increase in the costs of labour, materials or other costs of manufacture), any change in delivery dates, quantities or specifications for the Products and Support Services which is requested by the Customer, or any delay caused by any instructions of the Customer or failure of the Customer to give Datasharp adequate information or instructions.
  6. Invoicing and Payment
    1. Time for payment of the Monthly Charge for Products and Support Services Ordered each month covering the Products and Support Services Start Date to the Products and Support Services End Date shall be of the essence of the Contract.
    2. The Customer may be subject to a credit check by Datasharp at Datasharp’s discretion.
    3. The Customer may be required to pay a deposit upon signing the Contract. If a deposit is required to be paid this will be set off against the purchase price. Deposits shall be non-refundable.
    4. All prices documented in this Contract are net of VAT and are fully subject to VAT at the prevailing rate at the time of invoicing.
    5. Datasharp may invoice the Customer for the price of the Products and Support Services on or at any time prior to delivery or collection of the Products and Support Services.
    6. The terms of payment shall be in the case of Products and Support Services delivered, as per Datasharp’s invoice instructions, whether or not delivery has taken place or title of the Products and Services has passed to the Customer.
    7. Invoices will be issued by Datasharp in advance of the Cover Period for all Products and Support Services ordered and in arrears for consumption based charges including all Anytime IT Support Minutes used in excess of the Total Monthly Inclusive Anytime IT Support Minutes.
    8. Additional Products and Support Services ordered will be invoiced from the date the Products and Support Services became available charged daily on a prorata basis.
    9. Any Products and Support Services cancelled will cease to be charged from the commencement of the month following the minimum of one full months notice received in writing. Additional Anytime IT Support Minutes purchased may not be reduced or cancelled prior to the Products and Support Services End Date.
    10. The Customer agrees to pay Datasharp the instalments in full by direct debit up to 39 days prior to the commencement of the next Cover Period.
    11. The Customer agrees to pay in full any invoices in accordance with the invoice terms detailed on the invoice and for any additional services or expenses rendered or incurred by Datasharp under the provision of this Contract.
    12. Any payment by debit or credit card will be subject to an administration fee of 3% of the amount paid.
    13. If the Customer fails to make payment in full on the due date Datasharp shall be entitled to:
      1. terminate the Contract or suspend any further deliveries of Products and Support Services (whether ordered under the same Contract or not) to the Customer;
      2. charge the Customer interest on the overdue amount at the at the UK Government Statutory Rate. Such interest shall accrue on a daily basis and being compounded monthly from the due date until actual payment is made, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
      3. suspend all further Support Services, manufacture, delivery, installation, training or warranty service until payment has been made in full;
      4. impose a general lien on all Products and Support Services and property belonging to the Customer, exercisable in respect of all sums lawfully due from the Customer to Datasharp. Datasharp shall be entitled, on the expiry of 14 days’ notice in writing to the Customer, to dispose of such Products and Support Services or property in such manner and at such price as it thinks fit and to apply the proceeds towards the amount outstanding.
    14. All sums payable to Datasharp under the Contract shall become due immediately on its termination, despite any other provision of the Contract. This clause 6.14 is without prejudice to any right to claim for interest under the law, or any right under the Contract.
    15. The Customer agrees to pay an administration charge of £30.00 in connection with any late or failed payment under this Contract. The administration charge will be applied each month until the payment is made in full.
    16. Datasharp may, without prejudice to any other rights it may have, set off any liability of the Customer to Datasharp against any liability of Datasharp to the Customer.
    17. The Customer agrees to pay all invoices in full without the set off of any amounts.
  7. Suspension of Services
    1. Datasharp shall not be obliged to provide access to any or all Products and Support Services ordered under this Contract if any payment under this Contract is overdue and as such may limit access until the outstanding payment has been received.
    2. Datasharp shall provide written notice to the Customer if it elects to suspend its Support Services in connection with clause 7.1 above. The Support Services may be suspended with immediate effect until such time as payment is made in full and funds are cleared in Datasharp’s bank account.
  8. Delivery and Installation of Products and Support Services
    1. Datasharp may deliver the Products and Support Services by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions of the applicable Order.
    2. Datasharp shall use its reasonable endeavours to deliver and install the Products and Support Services to the Customer Site on the Products and Support Service Start Date or dates specified in the Order, but any such date is approximate only. If no dates are so specified, delivery shall be within a reasonable time of acceptance by Datasharp of the Order. Datasharp is not in any circumstances liable for any delay in delivery, howsoever caused, of the Products and Support Services.
    3. Delivery shall be made during normal business hours (excluding bank or public holidays) which shall be Monday to Friday, 9am to 5pm. Datasharp may levy additional charges for any deliveries made outside such hours at the Customer’s request.
    4. The Customer shall be responsible (at the Customer’s cost) for preparing the Customer Site for the delivery and installation of the Products and Support Services and for the provision of all necessary access and facilities reasonably required to deliver and install the Products and Support Services and provide training (if applicable). If Datasharp is prevented from carrying out delivery, installation or training on the specified date because no such preparation has been carried out, Datasharp may levy additional charges to recover its loss arising from this event.
    5. The Customer shall be liable for the health and safety of Datasharp’s employees, providing training if applicable, and shall indemnify Datasharp for any harm caused to Datasharp’s employees when on the Customer Site to deliver and install the Products and Support Services. Datasharp’s employees shall use all reasonable endeavours to observe any of the Customer’s relevant health and safety rules and regulations and any other reasonable security requirements of which Datasharp has been notified by the Customer or which Datasharp’s employees are advised of whilst at the Customer Site.
    6. Upon delivery and installation of the Products and Support Services the Customer shall be deemed to have accepted the delivery and installation of the Products and Support Services unless the Customer exercises in writing its right of rejection in accordance with clauses 2.46 – 2.47.
    7. Datasharp shall be responsible for any damage, shortage or loss in transit, provided that the Customer notifies Datasharp (or its carrier, if applicable) within three (3) days of delivery or the proposed delivery date of the Products and Support Services and that the Products and Support Services have been handled in accordance with Datasharp’s stipulations or manufacturer requirements (as applicable). Any remedy under this clause shall be limited, at the option of Datasharp, to the replacement or repair of any Products and Support Services which is proven to Datasharp’s satisfaction to have been lost or damaged in transit.
  9. Termination
    1. The Customer may terminate the Contract at any time by giving no less than 60 days written notice to Datasharp, subject to clause 10.
    2. Without prejudice to any other right or remedy available to Datasharp, Datasharp may terminate the Contract or suspend any further deliveries under the Contract without liability to the Customer and, if the Products and Support Services have been delivered but not paid for, the price shall become immediately due and payable notwithstanding any previous Contract or arrangement to the contrary and either party may at any time terminate this Contract with immediate effect by giving written notice to the other party if:
      1. the other party fails to pay any amount due under this Contract on the due date for payment and remains in default not less than 14 days after being notified to make such payment;
      2. the other party commits a Material Breach of any clause of this Contract (other than failure to pay any amounts due under this Contract) and (if such breach is remediable) fails to remedy that breach within a period of 7 days after being notified in writing to do so;
      3. the other party repeatedly breaches any of the terms of this Contract 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 Contract;
      4. 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;
      5. the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
      6. an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party;
      7. the other party ceases to do business.
    3. Without affecting any other right or remedy available to it, Datasharp may terminate this Contract on giving not less than 60 days written notice to the Customer.
    4. Any provision of this Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Contract shall remain in full force and effect.
    5. Termination or expiry of this Contract 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 Contract which existed at or before the date of termination or expiry.
  10. Effect of Termination
    1. The Contract will be deemed terminated 60 days after Datasharp receives the written termination.
    2. Datasharp has the right to charge the Customer early termination charges from the period of termination to the Products and Support Services End Date. The early termination charges will be calculated based on the highest monthly charge invoiced to date under this Contract pro rata for the remaining term.
    3. Datasharp has the right to charge the Customer for all unpaid elements of the Products and Support Services ordered on the Order.
    4. Following termination of this Contract, Datasharp shall invoice the Customer all remaining charges to the termination date.
    5. The Customer shall immediately pay any outstanding sums due in respect of unpaid invoices.
    6. Subject to Clause 10.5, following termination of this Contract, Datasharp shall remove all installed intelligent services agents and return to the Customer any Products and Support Services related data and passwords which it holds in relation to this Contract within 14 days and shall delete such information from its databases.
    7. At earliest of the Product and Support Services End Date and the termination date, Datasharp will remove access to all Products and Support Services detailed on the Order.
    8. The Customer will be charged an administration fee of £150 for the removal or assistance to remove data from The Datasharp Cloud for the Customer’s further use. The labour time taken to perform this work will be deducted from the Anytime IT Support Minutes and any excess minutes charged in accordance to the provisions of this Contract. If the labour is carried out after the Contract is terminated or after the Products and Services End Date the Customer will be charged for this labour at Datasharp’s prevailing standard rate. Datasharp cannot guarantee the Customer’s data will be available once the Contract has been terminated.
    9. The provisions of clauses 2.25 – 2.27, 2.31 – 2.37, 2.5 – 2.8, 2.53 – 2.58 shall remain in full force and effect notwithstanding any termination of this Contract.
  11. Products
    1. Datasharp will charge the Customer a usage fee for the transfer of data through the Datasharp Cloud at the prevailing rate for each gigabit (GB) or part of transferred in a calendar month.
    2. If Datasharp refers to a software licence in the Contract the price includes the licence fee for the Customer’s right to use the Software during the specified period.
  12. Support Services
    1. Datasharp offers access to the Support Services on a 24 hour a day, 365 days per year basis.
    2. Datasharp will provide support for the Customer’s IT System from the Products and Support Services Start Date at the Installation Addresses as set out on the Order until the first of the Contract is terminated or the Products and Support Services End Date.
    3. The Support Services cover the operation of the IT System, but this does not amount to a warranty that Datasharp will be able to resolve all Support Requests relating to the Customer’s IT System.
    4. If any item included in the Customer’s IT System is unsupported by the manufacturer or classed as end of life Datasharp will endeavour to assist. This assistance may result in excess usage of Support Services and the item may be beyond resolution or fix.
    5. Datasharp will endeavour to assist in ensuring that the Customer’s IT System interoperates with any Third Party Applications, as requested by the Customer, in so far as Datasharp is able to, however there is no obligation on Datasharp to do so.
    6. When the Customer submits a Support Request to the Helpdesk, Datasharp will, within the Response Time, either instigate remedial action through remote interrogation or arrange for a service engineer to visit the Customer Site (as applicable) as soon as is practicably possible (to be decided on a case by case basis and at the discretion of Datasharp).
    7. Datasharp shall provide Support Services for Faulty Equipment as follows:
      1. If Datasharp provided the Faulty Equipment to the Customer and the Faulty Equipment is under warranty, Datasharp will liaise with the Manufacturer to request the Faulty Equipment be repaired or replaced under the warranty,
      2. If Datasharp did not provide the Faulty Equipment, the Customer will liaise with the Manufacturer directly to request the Faulty Equipment be repaired or replaced.
    8. Datasharp will advise on (and where necessary during regular maintenance, implement) any necessary updates required for the IT System to maintain effectiveness.
    9. Datasharp will endeavour to keep to a minimum any interference or downtime caused to the Customer’s IT Systems when providing the Support Services and shall wherever possible provide the Customer with at least 24 hours’ notice of any planned maintenance that will result in the Customer’s IT Systems experiencing any interference or downtime.
    10. All Customer Sites located within the Primary Service Area will receive on-site service without any charge for travel and accommodation.
    11. For all Customer Sites located outside the Primary Service Area the attendance to site will be on best endeavours and will incur an additional on site visit charge at Datasharp’s rate. Overnight accommodation will be charged at Datasharp’s current rate when required. All on site work at Customer Sites located outside the Primary Service Area will only be undertaken with prior written approval and acceptance of the associated additional costs by the Customer.
    12. Any new Customer Sites added to the Contract after the Products and Support Services Start Date will require a site survey by Datasharp prior to the commencement of service for this location. The time taken to perform and document the site survey will be deducted from the Anytime IT Support Minutes. If the new Customer Site is not within the Primary Service Area all additional charges detailed in clause 12.11 will be charged.
  13. Anytime IT Support Minutes
    1. All Anytime IT Support Minutes included in the Products and Support Services ordered are calculated on the 1st of each calendar month.
    2. All Anytime IT Support Minutes included in the Products and Support Services ordered that are unused at the end of the month will expire.
    3. No rebate, in whole or in part, will be given to the Customer for any unused Anytime IT Support Minutes remaining at the expiry of the Products and Support Services End Date or on the termination of the Contract.
    4. Datasharp will record the usage of the Anytime IT Support Minutes in minute units.
    5. Datasharp will provide the Customer each month with a statement of the Anytime IT Support Minutes used during the previous calendar month.
    6. All excess Anytime IT Support Minutes used during a calendar month will be charged to the nearest minute at the prevailing rate detailed on the Order.
    7. The rate at which the Anytime IT Support Minutes are used is subject to a rate multiplier based on the day and time of day in which the support work is undertaken as detailed in the table below.
      Rate Multiplier for work performed during Monday Tuesday Wednesday Thursday Friday Saturday Sunday Bank Holiday
      06:00 – 08:29 x 1.5 x 1.5 x 1.5 x 1.5 x 1.5 x 2.0 x 2.0 x 3.0
      08:30 – 17:30 x 1.0 x 1.0 x 1.0 x 1.0 x 1.0 x 1.5 x 1.5 x 3.0
      17:31 – 21:59 x 1.5 x 1.5 x 1.5 x 1.5 x 1.5 x 2.0 x 2.0 x 3.0
      22:00 – 05:59 x 2.0 x 2.0 x 2.0 x 2.0 x 2.0 x 2.5 x 2.5 x 4.0
    8. All work undertaken at the Customer Sites is subject to a minimum 30 minutes charge (prior to adjustment for the Rate Multiplier),
  14. Customer’s Responsibilities
    1. For all elements of the IT System as covered by this Contract, the Customer agrees to the following conditions:
      1. To keep the IT System in environmental conditions recommended by the Manufacturer.
      2. To use the IT System in accordance with the instructions, recommendations and requirements issued by the Manufacturer and/or Datasharp.
      3. Not to move the IT System, or any part of it, from the Customer Site without informing Datasharp in writing.
      4. To allow Datasharp, and all other persons duly authorised by Datasharp, full, safe and uninterrupted access to the Customer Site when reasonably required for the performance of its duties.
      5. To allow Datasharp full, safe and uninterrupted access to the IT System remotely via data connections when reasonably required for the performance of its duties.
      6. To ensure that the IT System is adequately protected against power surges and any fluctuations in power supply by using an uninterruptable power supply.
      7. To ensure that the IT System is adequately protected against internal and external security threats including but not limited to: viruses; spy attacks; unauthorised remote access; unauthorised physical access to the server and other related threats.
      8. To ensure that IT System is not left unlocked when unattended and that adequate password protection is applied on all devices as standard practice (where applicable).
      9. To ensure that the IT System is not used to communicate any material that may cause offense.
      10. To ensure that the IT System is not used to breach third party Intellectual Property Rights whether intentionally or not.
      11. To ensure that all Customer data is backed up, stored and archived in accordance with industry standards on a regular basis.
      12. To ensure that the Disaster Recovery Plan is adhered to.
      13. To ensure that all software is properly registered and licensed and that all duties, fees and charges have been duly paid, satisfied or discharged.
    2. If the Customer fails to adhere to the conditions in clause 14.1 Datasharp shall not be liable for any delay or failure to meet its obligations or for any price increase or additional charges under this Contract.
    3. The Customer shall ensure that there are adequate safeguards to prevent the unauthorised use of the Products and Support Services either directly or remotely.
    4. The Customer must use reasonable endeavours to safeguard the Products and Support Services from damage or corruption, including by such methods as, but not limited to:
      1. changing all default manufacturer passwords, in particular in respect of voicemail boxes to ensure that unauthorised third parties are not able to access them; and
      2. call barring in relation to telephone equipment.
    5. Datasharp makes no warranties to the Customer that the security measures suggested in clause 14.4 will prevent unauthorised use.
    6. The Customer shall indemnify Datasharp against any losses, damages, costs (including legal fees) and expenses incurred by or awarded against Datasharp as a result of the Customer’s breach of this Contract howsoever arising or any negligent or wrongful act of the Customer, its officers, employees, contractors or agents.
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