These terms and conditions are applicable to goods and services provided by Dynamic Networks Group Limited and/or it’s associated companies, which are or may be a group company and/or subsidiary of Dynamic Networks Holding Limited. Herein referred to as ‘Dynamic’
THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF CLAUSE 3 (ROLLING PERIOD), CLAUSE 14 (LIMITATION OF LIABILITY) AND CLAUSE 16 (TERMINATION).
THE FOLLOWING DEFINITIONS AND RULES OF INTERPRETATION APPLY IN THESE CONDITIONS.
Addendums: The terms and conditions addended hereto and which can be found below, numbered 1 to 10 which are relevant to the Services to be provided pursuant to the Agreement.
Addendum 1. IT Managed Services and Support
Addendum 2. Cyber Security Services
Addendum 3. Networks and Infrastructure
Addendum 4. Telephone and Leased Line Services
Addendum 5. Software as a Service (SAAS)
Addendum 6. Back Up and Licencing Services
Addendum 7. Hosted and Platform Services
Addendum 8. Projects and Implementation
Addendum 9. Proactive and Onsite Services
Addendum 10. Portal Usage
Addendum 11. Third Party Suppliers
Addendum 12. Service Descriptions and Exclusions
Acceptance: shall where applicable mean acceptance of the Goods or Service by the Customer.
Agreement: the Agreement between Dynamic and the Customer for the supply of Goods and/or Services in accordance with these Conditions, including the Order, Specification and these terms and conditions and relevant addendum.
Application Frameworks: shall mean Dynamic's application frameworks background intellectual property comprising information and software owned or controlled by Dynamic which are an integral part of the provision of any given Services.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Charges: the charges payable by the Customer for the supply of the Goods and/or Services in accordance with Clause 11 (Charges and payment).
Commencement Date: has the meaning given in Clause 2.4.
Completion Date shall mean the delivery date for any of the Goods and/or Services pursuant to the Conditions.
Conditions: these terms and conditions and Addendums as amended from time to time in accordance with clause 20.5.
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, processor, data subject, personal data, personal data breach, processing and appropriate technical measures: as defined in the Data Protection Legislation.
Current Software Release: shall mean the current release of any Software which includes fixes and/or enhancements to the Software and as from time to time stipulated by Dynamic and/or the Third Party Supplier as being the latest version of the Software.
Customer: the person or firm or company who purchases Goods or Services from Dynamic.
Customer Default: has the meaning set out in clause 10.2.
Data Controller: has the meaning set out in section 1(1) of the Data Protection Act 1998, as amended from time to time.
Data Protection Legislation: 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: the deliverables set out in the Specification produced by Dynamic for the Customer.
Delivery shall mean delivery of the Goods or Services to the Customer
Delivery Location: has the meaning set out in Clause 5.2.
Documentation: Information supplied with the Dynamic Software in printed or machine readable format.
‘Dynamic, Dynamic Networks or Dynamic Networks Group: Dynamic Networks Group Limited a company registered in England and Wales with company number 06790995, it’s holding company Dynamic Networks Holdings Limited a company registered in England and Wales with Company Number 11467284) and every company which is for the time being a subsidiary of Dynamic Networks Holdings Limited or such holding company and “holding company” and “Subsidiary” are as defined in the Companies Act 2006.
Equipment: the Customer’s computer System on which the Software is to function comprising the Hardware and such other equipment items as Dynamic may have approved.
Fair Price: means a fair price for goods or services including a minimum mark up of 10 percent where Goods and Services are provided by a Third Party Supplier as part of the Agreement.
Force Majeure shall mean any cause beyond a Party’s reasonable control including without limitation, acts of God, war, terrorism, fire, flood or other accident, strike, lockouts, delays in transport, material shortages, failures or fluctuations in electric power or telecommunications services or equipment, restrictions or prohibitions of any government or semi-government authority.
Goods: the Equipment or Hardware or Software (or any combination thereof) supplied by Dynamic to the Customer as set out in the Order.
Hardware: those items of computer and other equipment referred to in the Specification.
Hosted Services shall mean any of the hosted services that may be provided to the Customer and that may be detailed within the Specification.
Insolvency Event shall mean an event where a Party either ceases or threatens to cease conducting its business in the normal manner; or is treated as being insolvent, or threatens or is in jeopardy of becoming insolvent because it:
(a) is unable to pay its debts (within the meaning of Section 123 of the Insolvency Act 1986); or
(b) makes or offers to make any arrangement or composition with any one or more of its creditors; or
(c) commits any act of bankruptcy or if any petition or receiving order in bankruptcy is presented or made against it; or
(d) any resolution or petition to wind it up (being a limited company) is issued or passed or presented otherwise than for reconstruction or amalgamation; or
(e) has had a receiver, administrator or liquidator appointed to it
(f) or otherwise becomes subject to an adverse credit event
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, 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.
Licenced Materials: Dynamic and the Documentation and/or Third Party Software.
Licence: any Licence granted to the Customer in respect of the Licenced Materials.
Maintenance: those Maintenance services to be provided or procured to be provided by Dynamic in respect of the Hardware and/or the Software pursuant to the Conditions.
Maintenance Charge: the annual charge for Maintenance as detailed in the Specification and as increased from time to time pursuant to Clause 11.3.
Maintenance Contract: the Agreement (or parts thereof the Agreement) relating to the Provision of Maintenance.
Order: the Customer’s order for Services and/or Goods as set out in the Customer’s purchase order form, the Customer’s written acceptance of a quotation by Dynamic, or overleaf, or attached as the case may be.
Out of Hours Support: means support provided outside of normal Working Hours and is applicable to P1 tickets only, where Out of Hours Support forms part of the Agreement.
Out of Scope Fees: shall mean the fees applicable to the provision of out of scope services in accordance with the Supplier’s rates as published from time to time.
Packaged Services: the provision of general solutions to tasks which are intended to be the subject matter of such Software and/or Hardware but not specifically produced (in its entirety) to comply with any specific need of the Customer.
Portal: shall mean the online central access portal which can be used inter alia to check the progress of support tickets raised with the Dynamic.
Renewal: shall mean any renewal of the Agreement term in accordance with Clause 3 or as agreed with the Customer from time to time.
Services: the services, including the Deliverables, supplied by Dynamic to the Customer as set out in the Specification.
Service Level Agreement: being the level of service agreed and noted in the Agreement with the Customer within the Specification and defined as a graded and escalated response.
Site: the location at a premises owned and/or controlled by the Customer which has been approved by Dynamic and at which the System is to be installed.
Software: those Packages proprietary to Dynamic and/or any bespoke software written for the Customer by Dynamic or its Third Party Suppliers referred to in the Order and/or Specification and supplied under this Agreement in either unmodified or modified form.
Special Item: an item of Hardware or Software or Service indicated as such in the Specification.
Specification: the description or specification of the Services to be provided in writing by Dynamic to the Customer and/or any specification for the Goods, including any relevant plans or drawings, that is agreed in writing (by email, letter or other electronic communication) by the Customer and Dynamic, a scope of works, road map or any other documentation containing a signature for or on behalf of the Customer.
Supplier: Dynamic Networks Group (‘Dynamic’).
Supplier Materials: has the meaning set out in Clause 10.1.9.
Support: means IT support as required and provided by a Dynamic Consultant.
Support Charge: the annual charge for Maintenance as detailed in the Specification and as increased from time to time pursuant to clause 11.3.
Support Contract: the Agreement (or parts thereof the Agreement) relating to the provision of Support.
System: means the systems and networks which the Customer requires to be provided pursuant to this Agreement;
Term: being the term as set out in the Agreement.
Termination Date: has the meaning set out in Clause 16.2.
Third Party Software: Packages other than Dynamic Software which are referred to in the Specification.
Third Party Supplier: A supplier of goods and or services, which Dynamic utilises in order to perform its obligations under the Agreement and as identified in the Specification.
UK Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
Work Day: any weekday other than a statutory, bank or public holiday and is 8 working hours inclusive of mandatory breaks.
Working Hours: means
1) Office hours - the hours between 09:00 and 17:00 on each Working Day,
2) IT Support,- the hours between 08:00 hours and 18:00 hours on each working day, save for P1 tickets, whereupon Working Hours will be stated in the Agreement if different from the general position.
1.1.1 A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
1.1.2 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.
1.1.3 A reference to writing or written includes emails and other secure electronic communications.
2 BASIS OF CONTRACT
2.1 The Order constitutes an offer by the Customer to purchase Goods and/or Services in accordance with these Conditions.
2.2 An Order shall be submitted to Dynamic by way of purchase order, save where the Customer confirms in writing to Dynamic that it authorises Orders to be given to Dynamic verbally or by secure email.
2.3 Any employee of the Customer who submits an Order to Dynamic is deemed to have the requisite authority to bind the Customer to that Order and this Agreement, save where Dynamic have otherwise been expressly notified in writing.
2.4 The Order shall only be deemed to be accepted when Dynamic issues written acceptance of the Order at which point and on which date the Agreement shall come into existence (Commencement Date).
2.5 Any samples, drawings, descriptive matter or advertising issued by Dynamic, and any descriptions or illustrations contained in the Dynamic’s catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Goods and/or Services described in them. They shall not form part of the Agreement or have any contractual force.
2.6 These Conditions apply to the Agreement to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
2.7 Any quotation given by Dynamic shall not constitute an offer and is only valid for a period of 30 Business Days from its date of issue.
2.8 All of these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.
3 ROLLING PERIOD
Unless the Agreement is for a single Service or supply of Goods on a one off or proforma basis, then the term of this Agreement shall commence on the Commencement Date and shall continue for 12 months. This Agreement shall be automatically renewed annually thereafter, unless either party delivers to the other written notice of termination in accordance with Clause 16.
3.2. Where Services have been provided on a continuous 6 month rolling period, then an Agreement with a minimum term will apply, in accordance with Clause 3.1.
4.1. The goods are described in the Specification.
4.2. The Customer shall indemnify Dynamic 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 professional costs and expenses suffered or incurred by Dynamic arising out of or in connection with any claim made against Dynamic for or alleged or actual infringement of a third party’s intellectual property rights arising out of or in connection with Dynamic’s use of the Specification. This clause 4.2 shall survive termination of the Agreement.
4.3. Dynamic reserves the right to amend the Specification if required by any applicable or regulatory requirement and Dynamic shall notify the Customer in any such event.
5 DELIVERY OF GOODS
5.1 Dynamic shall use its best endeavours to ensure that:
5.1.1. Each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, all relevant Customer and Supplier reference numbers, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Order is being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and
5.1.2. It states clearly on the delivery note any requirement for the Customer to return any packaging material to the Supplier. The Customer shall make any such packaging materials available for collection at such times as the Supplier shall reasonably request. Returns of packaging materials shall be at the Supplier’s expense.
5.1.3. Save that this Clause 5.1 will not apply where the Goods are delivered direct to the Customer by a Third Party.
5.2. Dynamic shall deliver the Goods to the location set out in the Order or any other location as may be agreed with the Customer before delivery (Delivery Location).
5.3. Delivery of the Goods shall be completed on the completion of the unloading of the Goods at the Delivery Location.
5.4. Any dates quoted for Delivery of the Goods are approximate only, and the time of delivery is not of the essence. Dynamic shall not be liable for any delay in the delivery of the Goods that is caused by a Force Majeure Event or the Customer’s failure to provide Dynamic with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods, including a failed delivery, which is not the fault of Dynamic..
5.5. If Dynamic fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods or similar description and quality in the cheapest market available, less the price of the Goods. Dynamic shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer’s failure to provide Dynamic with adequate delivery instructions for the Goods or any relevant instruction related to the supply of the Goods.
5.6. If the Customer fails to take delivery of the Goods within 3 Business Days of Dynamic notifying the Customer that the Goods are ready, then except where such failure or delay is caused by a Force Majeure Event or by Dynamic’s failure to fulfil its obligations under the Agreement in respect of the Goods:
5.6.1. Delivery of the Goods shall be deemed to have been completed at 9:00 am on the third Business Day following the day on which Dynamic notified the Customer that the Goods were ready; and
5.6.2. Dynamic shall store the Goods until delivery takes place and charge the Customer for all related costs and expenses (including insurance).
5.7. If ten Business Days after the day on which Dynamic notified the Customer that the Goods were ready for delivery the Customer has not accepted delivery of them, Dynamic may resell or otherwise dispose of part or all of the Goods and after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods. . Where Dynamic is unable to resell or otherwise repurpose the Goods then the Customer shall be liable to Dynamic for the full value of the Goods.
5.8. The Goods are non-returnable once Delivery has taken place.
5.9. Where Goods are provided by Dynamic under the Agreement by a Third Party Supplier, the Third Party Suppliers terms and conditions (as in force from time to time) are incorporated into the Conditions on a back to back basis.
6. QUALITY OF GOODS
6.1. Dynamic gives no warranty as to the quality of the Goods, beyond that provider by the third party supplier of the Goods (if any).
6.2. Any claim the Customer has in respect of the quality of the Goods and their fitness for purpose is the responsibility of the third party supplier of the Goods and Dynamic accepts no liability in respect thereof.
6.3. Where the Customer intends to resell the Goods provided to it by Dynamic, then any warranty provided by Dynamic is respect of the Goods in none-transferable and the Customer will be liable for providing any onward warranty to their end customer.
7. TITLE AND RISK
7.1. The risk in the Goods shall pass to the Customer on completion of Delivery.
7.2. Title to the Goods shall not pass to the Customer until Dynamic receives payment in full (in cash or cleared funds) for the Goods, in which case title to the Goods will pass at the time of payment
7.3. Until the Goods have passed to the Customer, the Customer shall:
7.4. Maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on Dynamic’s behalf from the date of delivery;
7.5. Notify Dynamic immediately if it becomes subject to an Insolvency Event.
7.6. Give Dynamic such information relating to the Goods as the supplier may require from time to time.
7.7. Or where the Customer is no longer in possession of the Goods to recover other Goods belonging to the Customer to the same value of the Goods.
7.8. If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in Clause 16.3 (2) to Clause 16.3 (4) then, without limiting any other right or remedy Dynamic may have, Dynamic may at any time:
7.8.1. Require the Customer to deliver up all Goods in its possession; and
7.8.2. If the Customer fails to do so promptly, enter any premises of the Customer or any third party where the Goods are stored in order to recover them.
8. SUPPLY OF SERVICES
8.1. Dynamic shall supply the Services to the Customer in accordance with the Specification in all material respects.
8.2. Dynamic shall use all reasonable endeavours to meet any performance dates specified in the Order, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
8.3. Dynamic reserves the right to amend the specification if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and Dynamic shall notify the Customer in any such event.
8.4. Dynamic warrants to the Customer that the Services will be provided using reasonable care and skill.
9. DYNAMIC NETWORK GROUPS OBLIGATIONS
9.1. Are obliged to supply the Services and any Deliverables to the Customer in accordance with the Specification in all material respects.
9.2. Shall use its reasonable endeavours to meet the performance dates specified in the Specification, but any such dates shall be estimates only and time shall not be of the essence of the Agreement.
9.3. Shall have the right to make any changes to the Services and any Deliverables which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services or any Deliverables, Dynamic shall notify the Customer in any such event.
9.4. Shall not, without the prior written consent of the Customer, at any time from the date of Commencement of the Agreement to its expiry and for six months after completion of the Services, solicit or entice away from the Customer or employ or attempt to employ any person who is, engaged as an employee of the Customer.
10. CUSTOMER’S OBLIGATIONS
10.1. The Customer shall:
10.1.1. ensure that the terms of the Order and any information it provides in the Specification are complete and accurate;
10.1.2. co-operate with Dynamic in all matters relating to the Services;
10.1.3. provide Dynamic, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, office accommodation and other facilities as reasonably required by Dynamic;
10.1.4. provide Dynamic with such information and materials as Dynamic may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
10.1.5. prepare the Customer’s premises for the supply Goods and/or of the Services including (but not limited to) Health and Safety, safe working and any associated works pertaining to the successful delivery and secure onsite facilities for the storage for Goods and miscellaneous items.
10.1.6. obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;
10.1.7. comply with all applicable laws, including health and safety laws;
10.1.8. keep all materials, equipment, documents and other property of Dynamic (Supplier Materials) at the Customer’s premises in safe custody at its own risk, maintain the Supplier Materials in good condition until returned to Dynamic, and not dispose of or use Dynamic Materials other than in accordance with Dynamic’s written instructions or authorisation;
10.1.9. comply with any additional obligations as set out in the Specification.
10.2. If Dynamic’s performance of any of its obligations under the Agreement is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
10.2.1. without limiting or affecting any other right or remedy available to it, Dynamic shall have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays Dynamic’s performance of any of its obligations;
10.2.2. Dynamic shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from Dynamic’s failure or delay to perform any of its obligations as set out in this clause 10.2; and
10.2.3. the Customer shall reimburse Dynamic on written demand for any costs or losses sustained or incurred by Dynamic arising directly or indirectly from the Customer Default including interest pursuant to Clause 11.9.
11. CHARGES AND PAYMENT
11.1. The price for Goods:
11.1.1. Shall be the price set out in the Order or, if the price is not quoted, the price set out in the Supplier’s published price list as at the date of the Order; and
11.1.2. Shall be exclusive of all costs and charges of packaging, insurance, transport of the Goods which shall be invoiced to the Customer.
11.2. The Charges for the Services shall be calculated on a time and materials basis:
11.2.1. the Charges shall be calculated in accordance with Dynamic’s standard daily fee rates, as advertised from time to time;
11.2.2. Dynamic’s daily fee rates for each individual are calculated on the basis of an eight hour day (inclusive of mandatory breaks) worked on Business Days;
11.2.3. Dynamic shall be entitled to charge an overtime rate of one hundred per cent of the daily fee rate on a pro-rata basis for each part day or for any time worked by individuals whom it engages on the Services outside the hours referred to in clause 11.2(2); and
11.2.4. Dynamic shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom Dynamic engages in connection with the Services including travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by Dynamic for the performance of the Services, and for the cost of any materials.
11.3. Dynamic reserves the right to increase the Charges during the Term and/or on an annual basis at a rate of no more than five percent.
11.4. In the case of any annual Agreement Renewal, Dynamic reserves the right to evaluate and increase or decrease the new Agreement to reflect any additional or reduced resource required in the successful delivery of the Services as required at the point of renewal.
11.5. If the Customer requests changes to the Agreement during the Term, Dynamic reserves the right to amend the Charges to reflect the Agreement changes requested by the Customer. Dynamic’s agreement to the change request will be subject to the Customer’s agreement to the amended Charges.
11.6. In respect of Services Dynamic shall invoice the Customer monthly in advance.
11.7. In respect of Goods Dynamic shall invoice the Customer upon receipt of the Order, or on or at any time after completion of Delivery.
11.8. The Customer shall pay each invoice submitted by Dynamic:
11.8.1. within 30 days of the date of the invoice; or
11.8.2. where credit terms are unavailable to the Customer, immediately upon receipt of invoice; and
11.8.3. in full and in cleared funds to a bank account nominated in writing by Dynamic, and
time for payment shall be of the essence of the Agreement.
11.9. All amounts payable by the Customer under the Agreement are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Agreement by Dynamic to the Customer, the Customer shall, on receipt of a valid VAT invoice from Dynamic, pay to Dynamic such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
11.10. If the Customer fails to make a payment due to Dynamic under the Agreement by the due date, then, without limiting Dynamic’s remedies under these terms and conditions, 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 11.8 will accrue each day at 8% a year above the Bank of England’s base rate from time to time, but at 8% a year for any period when that base rate is below 0%.
11.11. All amounts due under the Agreement 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).
12. INTELLECTUAL PROPERTY RIGHTS
12.1. All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned by Dynamic.
12.2. Dynamic grants to 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 the Agreement to copy the Deliverables (excluding materials provided by the Customer) for the purpose of receiving and using the Services and the Deliverables in its business.
12.3. The Customer shall not sub-license, assign or otherwise transfer the rights granted in Clause 6.2.
12.4. The Customer grants Dynamic a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by the Customer to Dynamic for the term of the Agreement for the purpose of providing the Services to the Customer.
13. DATA PROTECTION
13.1. Both parties will comply with all applicable requirements of the Data Protection Legislation. This Clause 13 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation. In this Clause 13, Applicable Laws means (for so long as and to the extent that they apply to Dynamic) the law of the European Union, the law of any member state of the European Union and/or Domestic UK Law; and Domestic UK Law means the UK Data Protection Legislation and any other law that applies in the UK.
13.2. The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the controller and the Supplier is the processor.
13.3. Without prejudice to the generality of Clause 13.1, the Customer will ensure that it has all necessary and appropriate consents and notices in place to enable lawful transfer of the personal data to the Supplier for the duration and purposes of the Agreement.
13.4. Without prejudice to the generality of Clause 13.1 the Supplier shall, in relation to any personal data processed in connection with the performance by the Supplier of its obligations under the Agreement:
13.4.1. process that personal data only on the documented written instructions of the Customer unless the Supplier is required by Applicable Laws to otherwise process that personal data. Where the Supplier is relying on Applicable Laws as the basis for processing personal data, the Supplier shall promptly notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Supplier from so notifying the Customer;
13.4.2. 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);
13.4.3. ensure that all personnel who have access to and/or process
personal data are obliged to keep the personal data confidential; and
13.4.4. 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:
188.8.131.52. the Customer or the Supplier has provided appropriate safeguards in relation to the transfer;
184.108.40.206. the data subject has enforceable rights and effective legal remedies;
220.127.116.11. 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
18.104.22.168. the Supplier complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the personal data;
13.4.5. 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;
13.4.6. notify the Customer without undue delay on becoming aware of a personal data breach;
13.4.7. 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
13.5. The Customer does not consent to the Supplier appointing any third party processor of personal data under the Agreement.
13.6. Either party may, at any time on not less than 30 days’ notice, revise this Clause 13 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced and updated on Dynamic’s website Agreement).
14. LIMITATION OF LIABILITY:
14.1. Dynamic will, during the period of warranty (where such is provided), and within a month from the date of delivery of the Goods, which are proved to the reasonable satisfaction of Dynamic to not comply with the Specification due to defects in material or workmanship, repair, or at its option replace, such Goods. Provided that Dynamic complies with this obligation it shall have no further liability to the Customer in connection with such non-compliance. Save that the cost of installation will be charged to the Customer in accordance with Clause 11, where the Goods are provided to Dynamic by a Third Party Supplier. The obligation will not apply where:
14.1.1. The Goods have been improperly altered in any way whatsoever, or have been subject to misuse or unauthorised repair;
14.1.2. The Goods have been improperly installed or connected (other than by Dynamic);
14.1.3. any maintenance requirement relating to the Goods has not been complied with (other than where Dynamic is responsible for such maintenance under the Agreement); and
14.1.4. the Customer has failed to notify Dynamic of any defect or suspected defect within 14 days of the same coming to the knowledge of the Customer, and in any event no later than 12 months from the date of Delivery
14.2. Dynamic warrants that the Services will be provided with reasonable care and skill.
14.3. Neither party shall benefit from the limitations and exclusions set out in this clause in respect of liability arising from its deliberate default.
14.4. Nothing in the Agreement limits any liability which cannot legally be limited; including liability for:
14.4.1 death or personal injury caused by negligence;
14.4.2 fraud or fraudulent misrepresentation; or
14.4.3 breach of the terms implied by Section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession)
14.5 Except as provided in paragraph 14.4, Dynamic will be under no liability to the Customer whatsoever (whether in contract, tort (including negligence), breach of statutory duty, restitution or otherwise), for any indirect or consequential loss or for any loss of profits, loss of business, loss of anticipated savings, depletion of goodwill and like loss howsoever caused arising out of or in connection with the Agreement.
14.6 Except as set out in paragraph 14.4, Dynamic hereby excludes to the fullest extent permissible in law, all conditions, warranties and stipulations, express (other than those set out in the Agreement) or implied, statutory, customary or otherwise which, but for such exclusions, would or might subsist in favour of the Customer.
14.7 The Customer acknowledges that the above provisions of this paragraph 14 are reasonable and reflected in the Fees which would be higher without those provisions, and the Customer will accept such risk and/or insure accordingly.
15 THIRD PARTY SOFTWARE
15.1. In addition to the terms of the Agreement, the Customer’s use of any Third Party Software is governed by the terms contained in the relevant Third Party Software Licence (copies of which are found at the Third Party Suppliers website as set out in Addendum 11).
15.2. Unless the Customer notifies Dynamic that it intends to make a claim in respect of an event within the notice period, Dynamic shall have no liability for that event. The notice period for an event shall start on the day on which the Customer became, or ought reasonably to have become, aware of the event having occurred and shall expire 12 months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
15.3. In the event that Dynamic procures the Third Party Software Licence for the Third Party Software for and on behalf of the Customer then the Customer agrees to be bound by the terms and conditions of the Third Party Software Licence (as found at Addendum 10) as shall be published and amended from time to time on a full back to back basis.
15.4. The Customer shall accordingly fully indemnify Dynamic against (not by way of limitation) any and all liabilities, claims, losses and expenses that may be incurred by Dynamic to the extent that the same are a result of the Customer’s failure to comply with the terms and conditions of the Third Party Software Licence.
16.1. Without affecting any other right or remedy available to it, either party may terminate the Agreement by giving the other party not less than 90 days written notice, such notice not to expire before the end of the Term (or any anniversary of it) and subject to Clause 3.
16.2. The Agreement will terminate at the end of 90 days from the date written notice of the intention to terminate is served or at the end of the Term (or any anniversary of it) whichever is later (the Termination Date).
16.3 Without affecting any other right or remedy available to it, either party may terminate the Agreement with immediate effect by giving written notice to the other party if:
16.3.1 the other party commits a material breach of any term of the Agreement and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing to do so;
16.3.2. the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
16.3.3 the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
16.3.4 the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Agreement has been placed in jeopardy or becomes subject to an Insolvency Event.
16.4 Without affecting any other right or remedy available to it, Dynamic may terminate the Agreement with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Agreement on the due date for payment; or
16.4.1 there is a change of Control of the Customer; or
16.4.2 if the Customer is abusive to and/or attempts to intimidate any employee of Dynamic.
16.4.3 Should Dynamic chose to exercise its right under this clause, the Customer remains liable for payment pursuant to the terms of the Agreement notwithstanding termination.
16.5 Without affecting any other right or remedy available to it, Dynamic may suspend the supply of Services under the Agreement or any other Agreement between the Customer and Dynamic if the Customer fails to pay any amount due under the Agreement on the due date for payment, the Customer becomes subject to any of the events listed in clause 16.6.2 to clause 16.6.4 or Dynamic reasonably believes that the Customer is about to become subject to any of them.
17 CONSEQUENCES OF TERMINATION
On termination of the Agreement:
17.4.1 the Customer shall immediately pay to Dynamic all of Dynamic’s outstanding unpaid invoices, interest and any charges due pursuant to Clause 11, in respect of Services supplied but for which no invoice has been submitted, Dynamic shall submit an invoice, which shall be payable by the Customer immediately upon receipt;
17.4.2 the Customer shall return all of Dynamic Materials and any Deliverables which have not been fully paid for. If the Customer fails to do so, then Dynamic may enter the Customer’s premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Agreement.
17.5 Termination or expiry of the 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.
17.6 Any provision of the Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Agreement shall remain in full force and effect.
18 ASSIGNMENT AND SUBCONTRACTORS
The Customer may not assign the Agreement without the Dynamic’s prior written consent. Dynamic may assign the Agreement in whole or in part as part of a corporate reorganisation or a sale of its business, and the Dynamic may transfer the Customer’s Confidential Information as part of any such transaction. Dynamic may use third party service providers to perform all or any part of the Services, but the Dynamic remains responsible to the Customer under this Agreement for work performed by its third party service providers to the same extent as if Dynamic had performed the Services itself.
19.4 Force majeure. Neither party shall be in breach of the Agreement nor liable for delay in performing, or failure to perform, any of its obligations under the Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control.
19.5 Assignment and other dealings.
19.5.1 Dynamic may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Agreement.
19.5.2 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 the Agreement without the prior written consent of Dynamic..
19.6.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 19.3(b).
19.6.2 Each party may disclose the other party’s confidential information:
22.214.171.124 to its employees, officers, representatives, subcontractors, third parties (but only insofar as they obtain the information during the course of the Agreement) or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Agreement. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 19.3; and
126.96.36.199 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
19.6.3 Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Agreement.
19.7 Entire agreement.
19.7.1 The Agreement constitutes the entire agreement between 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.
19.7.2 Each party acknowledges that in entering into the Agreement 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 the Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Agreement.
19.7.3 Nothing in this clause shall limit or exclude any liability for fraud.
19.8 Variation. Except as set out in these Conditions, no variation of the Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
19.9 Waiver. A waiver of any right or remedy under the Agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or default. A failure or delay by a party to exercise any right or remedy provided under the 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 the Agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.
19.10 Severance. If any provision or part-provision of the Agreement 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 the Agreement.
19.11.1 Any notice or other communication given to a party under or in connection with the 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 by email to the address specified in Order Form or other secure electronic means.
19.11.2 Any notice shall be deemed to have been received:
188.8.131.52 if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
184.108.40.206 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 at the time recorded by the delivery service; or
220.127.116.11 if email or other secure electronic means, 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 19.8(b)(iii), 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.
19.11.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
19.12 Third party rights.
19.12.1 Unless it expressly states otherwise, the Agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Agreement.
19.12.2 The rights of the parties to rescind or vary the Agreement are not subject to the consent of any other person.
19.13 Governing law. The 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.
19.14 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 the Agreement or its subject matter or formation.
Addendum 1. IT Managed Services and Support
The terms of this Addendum shall apply to any IT Managed Services and Support provided by Dynamic under this Agreement in addition to the General Terms and Conditions (in so far as those are applicable to the provision of IT Managed Services and Support). Where there is a conflict between the General Terms and Conditions and this Addendum, the terms in this Addendum shall prevail. Clauses referred to in this Addendum refer to Clauses within this Addendum unless otherwise stated.
In this Addendum the following definitions will apply:
Champion: An employee, agent or subcontractor of the Customer who has basic IT knowledge and can act as a conduit between the Customer and Dynamic.
All Proactive Services and Projects are specifically excluded from this Addendum. Where Proactive Services are provided to the Customer pursuant to the Agreement, the Customer is referred to Addendum 9 in respect of those services.
Dynamic shall supply the System and/or Services to the Customer at the prices set out in the Specification, subject to variation from time to time in accordance with these IT Managed Services and Support Terms and Conditions and Clause 11.3 and 11.4 of the General Terms and Conditions (hereinafter the “Terms”)
5.1 The Customer shall use all reasonable and appropriate security measures in connection with the Customer’s use of the Services and shall accordingly be solely responsible for maintaining an appropriate level of both physical and network/IT based security of its working operating environment so as to ensure that the proper provision of the Services by Dynamic shall not be unduly prejudiced or prevented and that the provision of the Services does not unduly compromise the security of the Customer’s operating environment.
5.2 Pursuant to the terms of clause 3.1, the Customer shall be responsible for undertaking such testing as shall be deemed in Dynamic’s opinion reasonably necessary in order to ensure that the Services provided by Dynamic can be deployed safely and successfully within the Customer’s environment. Accordingly, Dynamic shall not be held responsible in any way for any breaches of security or for being prevented from providing the Services to the extent that the same results from the Customer’s failure to act in accordance with the terms of this clause.
5.3 The Customer is responsible for keeping all usernames and passwords confidential.
5.4 The Customer shall immediately notify Dynamic of any unauthorised use of the Customer’s account or any other known breach of security. Dynamic has no obligation to provide security other than as may be detailed within this Addendum or the Specification.
6. Availability, Support Services, Proper Use and Obligations.
6.1 Dynamic will use its reasonable endeavours to provide to the Customer continuous access to the Services. Notwithstanding this, Dynamic reserves the right to remove the Services from time to time as it deems reasonably necessary in accordance with its knowledge, understanding and the Customer's requirements which shall include but not be limited to the requirement of conducting scheduled maintenance.
6.2 The Customer shall co-operate with Dynamic ’s reasonable investigation of Service outages, security problems, and any suspected breach of the Conditions.
7. Support Services
7.1 Dynamic shall provide support services to the Customer during the times specified under and in accordance with the relevant Service Level Agreement as set out in the specification. Such support services shall include the provision of maintenance releases which shall be provided at no additional charge as well as the provision of new versions to the extent that such new versions include updates to the functionality of the Software modules originally provided to the Customer. Major releases of functionality shall not be included and may be otherwise provided by Dynamic and/or the Third Party Suppliers from time to time at additional cost.
7.2. The provision of the support services is subject to the Customer using a version of the Software that is not more than one version prior to the Current Software Release. Where the Customer utilises Software not compliant with this Clause, support in respect of it is specifically excluded from the Agreement and Dynamic is not liable for any delay and or default in the provision of Service in that case.
7.3. The Service Levels suspend and will be invalidated if the Customer remains on unsupported software, and any support issues arising from the unsupported software will be chargeable.
7.4. On or before the Commencement date, the Customer shall supply to Dynamic one named technical contact or Champion with whom Dynamic is to liaise and who shall provide to Dynamic any documentation, source code and system access as required for Dynamic to provide the Services.
8. Proper Use
8.1.The Customer shall use the Services in a manner which is consistent with the Conditions and with any recommendations as may be made by Dynamic from time to time. Accordingly, Dynamic shall not be responsible for the consequences of any changes made by the Customer to the Services themselves or to anything which may affect the proper delivery or performance of the Services.
8.2. During the Term, the Customer will only replace Hardware with the prior written consent of Dynamic, such consent not to be unreasonably withheld.
9. Unauthorised Activity
9.1 Dynamic shall not be liable (and shall accordingly be absolved of any responsibility for the achievement of the Service Levels defined in each Specification) in the event that any faults or issues that develop as a result of any of the following events (not by way of limitation):
9.1.1 a relocation or a modification of the Software or Services (including but not limited to by the Customer or a third party adding to or interfacing the Software or Services with other software) which is neither carried out nor approved by Dynamic;
9.1.2 improper use or abuse of the Software or Services by any person other than Dynamic ;
9.1.3 any use of the Software or Services by a person other than Dynamic which contravenes an express written instruction or recommendation reasonably given by Dynamic to the Customer in relation to the Software or Services;
9.1.4 an event of Force Majeure;
9.1.5 Loss of or damage to any files or data where the Customer has failed to keep backups in line with either Dynamic recommendations (where applicable) or generally accepted industry standards in relation to the maintenance of back-ups;
9.1.6 Loss of or damage to the Software or Service where the Customer has failed to undertake necessary Maintenance in line with either Dynamic recommendations (where applicable) or generally accepted industry standards in relation to Maintenance of the Software or Service;
9.1.7 any issues which cannot be diagnosed because of a lack of available and appropriate network connectivity.
9.2 If a fault or issue arises as a result of any of the events described in clause 6.1 then, if requested to do so, Dynamic may attend to such fault or issue and charge the Customer on a time and materials basis in accordance with its then Out of Scope Fees (as advertised from time to time), even if such attendance is purely conducted with the objective of ascertaining the cause of the actual fault or issue to the extent that this is unknown or uncertain.
9.3. In the event where the Customer requires to make changes which are not recommended by Dynamic to either the Services, Software or operating systems, and further requires Dynamic to implement such changes, then Dynamic may agree to undertake such work on the basis Dynamic shall charge the Customer for such work and Dynamic shall be absolved of any responsibility for the achievement of the Service Levels defined within the Specification.
9.4. The Customer agrees to do each of the following:
(i) comply with applicable law,
(ii) pay when due the Charges for the Services,
(iii) use reasonable security precautions in connection with the Customer’s use of the Services,
(iv) cooperate with Dynamic’s reasonable investigation of Service outages, security problems, and any suspected breach of the Terms,
(v) keep the Customer’s billing contact and other account information up to date via the Portal and/or under manual process as prescribed by Dynamic, and
(vi) immediately notify Dynamic of any unauthorised use of the Customer’s account or any other breach of security.
9.5 The Customer acknowledges and agrees that for Dynamic to be able to provide the Services the Customer shall:
9.5.1 Co-operate with Dynamic as it reasonably requires.
9.5.2 Provide to Dynamic such information as it reasonably requires and accepts that delivery may be delayed by a time at least commensurate to any related delay in the provision of information by the Customer.
9.5.3 Provide to Dynamic any relevant access to their environment whereby this access is needed to enable investigation into any given support issue.
9.6 Dynamic may charge the Customer for any additional reasonable costs and expenses incurred by Dynamic to the extent that such costs and expenses result from either the supply by the Customer of inaccurate instructions, the Customer’s failure to provide such instructions or the Customer’s failure to comply with clause 9.6.
The Customers attentions is drawn to Addendum 5 in respect of the Terms and Conditions applicable to back up services.
11. Audit and Service Reviews
11.1 Dynamic reserves the right to audit the number of users that are using the Services on a regular basis as well as the Customer’s general use of the Services including (not by way of limitation) the type of servers, storage and data used and shall accordingly advise the Customer of the findings where appropriate. In the event that the Customer is using the Services for a number of users that exceeds that set out in the Specification, or its use of servers, storage, users and services exceeds that originally contemplated by Dynamic, then Dynamic reserves the right to levy a charge for such excess usage from the point at which such excess usage is identified based on the prevailing rates as defined by Dynamic from time to time.
11.2 The Parties agree to hold a review meeting by telephone to review the delivery and performance of the Services on at least a quarterly basis (‘the Review’), with each Quarterly Review having a duration not exceeding one hour, unless otherwise agreed between the Parties.
11.3 In the event that the Customer requests a face to face meeting either in place of the Review or in addition to it, then Dynamic reserves the right to charge for its attendance at the same.
12.1 In addition to the terms of the Agreement, the Customer’s use of any Third Party Software is governed by the terms contained in the relevant Third Party Software Licence as in force from time to time. Copies of the relevant Third Part Licence Terms are available from the Third Party Supplier as set out in Addendum 10.
12.2 In the event that Dynamic procures the Software Licence for the Third Party Software for and on behalf of the Customer then the Customer agrees to be bound by the terms and conditions of the Third Party Software Licence as shall be published and amended from time to time on a full back to back basis. The Customer shall accordingly fully indemnify Dynamic against (not by way of limitation) any and all liabilities, claims, losses and expenses that may be incurred by the Supplier to the extent that the same are a result of the Customer’s failure to comply with the terms and conditions of the Third Party Software Licence.
13. Re-selling of IT managed services
13.1 Subject to clauses 13.2 and 13.3 below, the Customer may resell the elements of the Services, subject to written permission from Dynamic, though the Customer is responsible for the use of the Services by any third party to the same extent as if the Customer was using the Services itself and shall accordingly ensure that such party is bound by terms at least equivalent to those set out within this Agreement. For the avoidance of doubt Dynamic shall have no liability whatsoever in relation to the use of the Services by any of the Customer’s own customers.
13.2 If the Customer resells any part of the Services that includes Third Party Software, then the Customer must include the Third Party Software terms described in Section 10 above in a written agreement with its customers. Dynamic will provide support only to the Customer and not to the Customer’s own customers, subsidiaries or affiliates.
13.3 For the avoidance of doubt, the Customer shall only be permitted to resell the Services to the extent that the Customer has provided additional value to such Services so as to render what is re-sold by the Customer as being sufficiently different to that originally supplied by Dynamic.
14. IP ADDRESSES
14.1 Upon expiration or termination of the Agreement, the Customer must discontinue use of the Services and relinquish use of any of the IP addresses and server names assigned to the Customer by Dynamic in connection with the Services, including pointing the DNS for the Customer’s domain name(s) away from the Dynamic’s Servers Services.
14.2 The Customer agrees that the Dynamic may, as it determines necessary, make modifications to DNS records and zones on the Dynamic managed or operated DNS servers and services.
14.3 IP Addresses used to provide the Services may change without notice at any time, therefore the Customer agrees that any DNS records pointing to the Service will be of CNAME type pointing to the DNS names provided by Dynamic.
ADDENDUM 2 Cyber Security Services
The terms of this Addendum shall apply to any Cyber Security Services provided by Dynamic under this Agreement in addition to the General Terms and Conditions (in so far as those are applicable to the provision of Cyber Security Services). Where there is a conflict between the General Terms and Conditions and this Addendum, the terms in this Addendum shall prevail. Clauses referred to in this Addendum refer to Clauses within this Addendum unless otherwise stated.
In this Addendum the following definitions will apply:
Cyber Security Authorisation Form: means the Company’s form to be signed by the Client and submitted to Company when ordering the Security Testing.
Cyber Security Services: means the provision of any defined service by Dynamic relating to cyber attack prevention, risk analysis and testing, data protection, PCI compliance and privacy services, operational threat intelligence, security risk management, penetration testing, SOC services and other technical solution services, including advice, safety and security.
ISP: Independant Service Provider
Security Testing: means the process of testing the System as described in the Proposal made by the Company to the Client
3. Service Exclusions
3.1 – The provision of the Services is contingent upon the Customer’s proper use of all Equipment and does not cover Equipment which has been subjected to unusual physical or electrical stress.
3.2 – Dynamic shall be under no obligation to provide a Service:
3.2.1 – where the Service includes Supported Software, if the licensor withdraws support for such Supported Software (in its entirety, or in the version licensed to the Customer);
3.2.2 – where the Service includes remote support, prevention of communication with the Equipment or software caused by the failure of a third party telecommunications facility.
3.3 – The Customer agrees that Dynamic shall not be liable to the Customer for the consequences to the Customer of any delay in performing (or failure to perform) the Services to the extent that the reason (or one of the reasons) for the delay (or failure to perform) is related to:
3.3.1 – where services that Dynamic will be relying on are provided by third parties and their installed components and software to provide, including any Third Party Services, together with such other third parties upon whom Dynamic shall be relying for provision of services in connection with the Services as shall be notified to the Customer by Dynamic in writing from time to time, whether in connection with emergency or urgent maintenance, or more generally otherwise; or
3.3.2 – any act or omission of the Customer (including any failure to comply with its obligations under the Agreement), its agents, subcontractors, consultants or employees.
4.1 – Dynamic does not warrant:
4.1.1 – that the performance of the Services and/or delivery of the Goods will cause the Customer’s Equipment (or other Hardware / Software) to operate without interruption or error or to be free of problems;
4.1.2 – that the Goods and/or Services will prevent all attacks to the Customer’s IT systems;
4.1.3 – that the use of the Proprietary Software, Support Software or Distributed Software shall be uninterrupted or error free; or
4.1.4 – the form or content of Distributed Software or Documentation, which is supplied ‘as is’. Distributed Software may be warranted directly to the Customer by the respective licensor as specified in the licence from the respective licensor provided with the Distributed Software.
4.2 – Dynamic will use its reasonable endeavours to assign to the Customer the benefit of all guarantees and warranties given by the manufacturer of the Goods to Dynamic. Where Dynamic is unable to validly assign the benefit of such guarantees and indemnities, Dynamic agrees to use reasonable endeavours to pursue all its rights and remedies under such guarantees and warranties on behalf of the Customer.
5. DYNAMIC'S DUTIES
5.1. Dynamic shall perform the Cyber Security Testing for the Customer using reasonable skill and care and in a professional, timely manner. Time for provision or completion of the Cyber Security Testing or any part of it shall not be of the essence.
5.2. Where a Test Report is required it shall, unless otherwise agreed, be produced by the Consultant within twenty eight working days or as agreed with the Customer on completion of the Security Testing and sent to the Customer.
5.3. Whilst Dynamic will use reasonable endeavours to ensure that the same Consultant will continue throughout the Security Testing, it reserves the right to replace that Consultant if necessary at its reasonable discretion by notifying the Customer.
5.4. Dynamic shall, where the Consultant is present on the Customer’s premises, ensure that the Consultant complies with such reasonable site rules and procedures as are prior notified to Dynamic.
5.5 Dynamic shall, process all data accessed during the Security Testing in accordance with it’s data policy and pursuant to Clause xx of the General Terms and Conditions.
6. THE CUSTOMER AGREES
6.1. To obtain appropriate consent from its ISP (Internet Service Provider), where the ISP is hosting services on behalf of the Customer and any other relevant third party supplier of the System, where the third party supplier is hosting services on behalf of the Customer for the Security Testing to be carried out and, when requested by Dynamic, to provide evidence of such consent and to notify relevant employees, agents and sub-contractors that the Security Testing has been scheduled and that they may be monitored;
6.2. To arrange a mutually convenient time with Dynamic for the performance of the Security Testing and to inform its ISP of the date agreed with Dynamic in accordance 4.1;
6.3. To make appropriate backups of the System prior to the commencement of the Security Testing;
6.4. That, where the Security Testing is to take place on the Customer’s premises, the Customer shall ensure that suitable accommodation is provided for the Consultant which shall include network access and, where necessary, access to data centres, server rooms and/or switch rooms;
6.5. That should the Customer require a laptop or Personal Digital Assistant (PDA) to be security tested by Dynamic it will deliver the laptop and/or PDA to the Dynamic’s registered address and collect it from those premises or authorise other means of delivery and return at the Customer’s own risk. Dynamic shall not be liable for the laptop or PDA during transit to or from its offices;
6.6. The Customer will compensate Dynamic for any direct losses incurred as a result of a claim from a third party arising out of any failure of the Customer to comply with clauses 6.1, 6.2 and 6.3 provided always that Dynamic shall mitigate any and all losses and provide written notice of any claim to the Customer within 10 working days;
6.7. To provide Dynamic with at least one employee or Champion who shall have substantial computer systems, network and project management experience of the Customer’s Systems to act as liaison between the Customer and Dynamic;
6.8. To co-operate with Dynamic and to provide it promptly with such information about its Systems, network, premises, equipment, data structures, protocols, Software, Hardware and firmware as are reasonably required by Dynamic;
6.9. To ensure that, where the Security Testing is taking place on its premises, the premises are safe;
6.10. That, by signing the Cyber Security Testing Authorisation Form, the Customer consents, for itself and on behalf of all group companies, to Dynamic performing the Security Testing and that it has procured, where necessary, the consent of all its (and its group companies) employees, agents and sub-contractors that Dynamic shall be permitted to carry out the Security Testing. Dynamic will be carrying out the Security Testing in the belief that it has all appropriate consents, permits and permissions from the Customer and its group companies (and their employees, agent and sub-contractors);
6.11. That, whilst Dynamic will conduct all Security Testing in line with accepted best practice and make all reasonable efforts to avoid disruption of the Customer’s network, the tools and techniques used may cause disruption to the Customer’s Systems and/or possible loss of or corruption to data and the Customer agrees to take such backups and provide such redundant systems as are prudent in the circumstances. Dynamic will notify the Customer in the event where activity would lead to loss of service or data before proceeding where this is known to Dynamic;
6.12. To notify Dynamic immediately if there are any periods during Security Testing when the Dynamic should stop work due to critical business processes (such as batch runs) or if any part of the System is business critical so that the Dynamic can, if needs be and with the Customer’s consent, modify its testing approach;
6.13. That, where Dynamic supplies any Software as part of the Security Testing, it shall only use such Software for lawful purposes;
6.14. That, during the performance of the Security Testing and for a period of 12 months after completion of the Security Testing, it will not recruit any employees or personnel of Dynamic which it met or was introduced to through its relationship under this Agreement without the prior written consent of Dynamic;
7.1. Dynamic shall not be liable for any loss or damage caused to either the Customer, its ISP or other third party supplier of the System either jointly or severally except to the extent that such loss or damage is caused by the negligent acts or omissions of or a breach of any contractual duty by Dynamic, its employees, agents or sub-contractors in performing the Security Testing.
ADDENDUM 3: Networks and Infrastructure Services
The terms of this Addendum shall apply to any Networks and Infrastructure, provided by Dynamic under this Agreement in addition to the General Terms and Conditions (in so far as those are applicable to the provision of Networks and Infrastructure, Telephony and Leased Line Services). Where there is a conflict between the General Terms and Conditions and this Addendum, the terms in this Addendum shall prevail. Clauses referred to in this Addendum refer to Clauses within this Addendum unless otherwise stated.
If the Agreement includes the provision of Network and Infrastructure, Services, the following terms and conditions shall apply in addition to the General Terms and Conditions.
Any defined terms not set out below, shall have the same meaning as set out in the Conditions.
All services provided under this Addendum by Dynamic, are provided by Dynamic as a reseller of Third Party Services.
In this addendum, the following definitions will apply:
“Agreement” means The Resellers Agreement between the Customer nd Dynamic inclusive of all addendums, attachments and relevant Terms, conditions and applicable application form and AUP;
AUP: Acceptable Use Policy
"Access Line" means the telecommunications circuit that the Customer uses to obtain telecommunications services over the public switched telephone network at the Premises as notified by the Customer to Dynamic;
"Act" means the Telecommunications Act 1984;
"Broadband" means ADSL, SDSL, FTTC or FTTP Internet services supplied by Dynamic either through BT Wholesale or Cable and Wireless Wholesale providers.
"Carrier" means any supplier of telecommunications services to Dynamic for the Service;
"Commencement Date" means the date when the Customer first receives the live Service.
"Customer Apparatus" means apparatus belonging to the Customer not forming part of the Equipment but which may be connected to the Equipment;
"Equipment" means any apparatus or equipment provided by Dynamic or any third party to the Customer at the Premises to enable provision of the Service;
"Minimum Period" means
ADSL standard services - one (1) calendar month from the commencement date.
FTTC standard services - twelve (12) calendar months from the commencement date.
FTTP standard services - twelve (12) calendar months from the commencement date.
"Dynamic System" means the telecommunication system which Dynamic runs via its Third Party Supplier and, for the purpose of this Agreement, any apparatus leased by, or otherwise obtained by, Dynamic and or it’s Third Party Supplier from a third party.
"Person" means an individual or a body corporate or unincorporated or a partnership and "Persons" shall be construed accordingly;
"Restricted Information" means any information which is disclosed to one party to this Agreement by the other pursuant to or in connection with this Agreement (whether orally or in writing, and whether or not such information is expressly stated to be confidential or marked as such);
"Services" hereafter and related to this addendum means those manual and automatic Xdsl and all related services as described on the date hereof and as may be advertised by Dynamic from time to time, together with any increased or improved services of such a nature that may be provided by Dynamic.
3.1 References to clauses and sub-clauses are, unless otherwise stated, references to clauses and sub-clauses within these Conditions.
3.2 The headings within this Addendum are for convenience only and shall not affect its interpretation.
4. Provision of Service
4.1 Dynamic will provide the Service to the Customer in accordance with these Conditions and in accordance with its Agreement with its Third Party Supplier.
4.2 Unless it forms part of the Order and therefore is the responsibility of Dynamic under the Agreement, the Customer must have an Access Line with the Physical Characteristics in order to receive the Service. If his Customer changes from the Physical Characteristics, Dynamic cannot be held responsible if the Customer is no longer able to receive the Service.
4.3 Except as otherwise expressly permitted in these Conditions, and in addition to other restrictions herein, the Customer may not:
4.3.1 Transfer rights to the use of the Service to any third party, whether in whole or in part;
4.3.2 Disclose Service features, errors or viruses to any third party without the prior written consent of Dynamic;
4.3.3 Use the Service except in conjunction with Dynamic (or its Third Party Supplier’s) recommended operating environment, notified by Dynamic or modify the Service without Dynamic’s prior written consent.
4.3.4 Dynamic reserves the right to change the Customer's password at any time at its sole discretion.
4.4 From time to time certain Points of Presence (PoPs),servers, or the whole or part of the Network may be closed down for routine repair or maintenance work. Dynamic shall give as much notice as in the circumstances is reasonable. Such works shall be carried out during the scheduled maintenance periods as published from time to time by Dynamic’s Third Party Supplier, in so far as is practicable. Dynamic shall have no liability to the Customer for any loss of activity and/or access to Services in respect of scheduled maintenance under this clause.
4.5 It may occasionally be necessary to interrupt the Service or change the technical specification of the Service for operational reasons or because of an emergency. In such circumstances, Dynamic will give the Customer as much notice as possible of any planned interruption of the Service. In these circumstances the Customer shall have no claim against Dynamic for any such interruption.
4.6 Any Internet Protocol address allocated by Dynamic to the Customer shall at all times remain the sole property of Dynamic and the Customer will have a non-transferable licence to use such address for the duration of the Agreement. If Agreement is terminated for whatever reason, the licence to use the Internet Protocol address shall automatically terminate and thereafter it will not use such address.
5. Authorisations and Authentications
5.1 Dynamic will issue a username and password to the Customer via two separate secure formats if not already issued for another service.
5.2 The Customer is responsible for careful use and storage of the username and or password issued by Dynamic. Dynamic reserve the right to change and update the username and or password on a regular basis and notify the Customer accordingly. If misuse or theft of the login information is suspected, the Customer agrees to immediately notify Dynamic in order to suspend the Customers account and or take other appropriate measures. Dynamic shall not be liable for losses or other consequences arising out of such misuse.
6. Agreement and Amendment Agreement
Dynamic reserve the right to add to and/or amend the Conditions at any time. Such changes shall be notified to the Customer by posting in the Terms and Conditions section of Dynamic’s Web site. Changes in this manner shall be deemed to have been accepted if the Customer continues to use the Service after a period of Fourteen (14) days from the date of posting on the Web site.
Addendum 4: Telephony and Leased Line Services
The terms of this Addendum shall apply to any Telephony and Leased Line Services, provided by Dynamic under this Agreement in addition to the General Terms and Conditions (in so far as those are applicable to the provision of Networks and Infrastructure, Telephony and Leased Line Services). Where there is a conflict between the General Terms and Conditions and this Addendum, the terms in this Addendum shall prevail. Clauses referred to in this Addendum refer to Clauses within this Addendum unless otherwise stated.
If the Agreement includes the provision of Telephony & Leased Lines, the following terms and conditions shall apply in addition to the General Terms and Conditions.
Any defined terms not set out below, shall have the same meaning as set out in the Conditions.
All services provided under this Addendum by Dynamic, are provided by Dynamic as a reseller of Third Party Services.
2. Definitions and Interpretation
In this Service Agreement the following expressions shall have the following meanings unless the context otherwise requires:
“Billing Period” means 1 month periods of time for the billing of Rental and other Charges under this Agreement to the Customer;
“Business Days” means Mondays to Fridays excluding Bank and Public Holidays;
“Charges” means the charges for the installation and use of Leased Line Services together with any charges for additional services and equipment due by Customer to Dynamic in terms of the Agreement;
“Circuit” means a Leased Line circuit whether for the provision of Internet Leased Line Services or Point to Point Leased Line Services;
“Customer Provided Apparatus” means any apparatus at the Sites (not being Services Equipment) provided and used by the Customer in order to use the Services;
“Go Live Date” means the date on which Dynamic notifies the Customer that the Service or part thereof are ready for use or, if earlier, the date on which the Customer first makes use of the Service of part thereof;
“Help Desk” the telephone helpdesk described in Clause 7.1;
“Incident Report” notification of an Incident which is raised by Dynamic or the Customer;
“Incident” a failure of the Service to operate in accordance with its published specification.
“Installation Charges” means the charges payable for installation of Services Equipment and for the commissioning and configuration of Services, as specified in the Order or as subsequently varied in accordance with the terms of this Agreement;
“Leased Line” means a circuit provided by Dynamic or its Third Party Supplier as described in clause 5;
“Normal Business Hours” the hours between 09:00 and 17:00 on Business Days;
“Operations Manual” the Dynamic operations manual applicable to the Services as may be amended from time to time;
“Order” means a request for the provision of Services by the Client which has been accepted by Dynamic in accordance with Clause 6 of this Agreement;
“Priority Level” the priority levels specified in the table set out at Clause 8.4.1;
“Protected Circuit” means a Circuit the local tail of which is protected fibre;
“Rental” means the rental payable by the Customer to Dynamic for the provision of Services and the Services Equipment as specified in the Order or as increased or decreased by Dynamic in accordance with the terms of the Agreement (if any);
“Service Credits” means reductions in certain charges or compensation payments in respect of Dynamic failing to meet specified Service Levels, calculated in the manner set out in this Agreement;
“Service Provider” means any third party who from whom Dynamic procures services (including the Third Party Supplier) in order to provide the Services under this Agreement;
“Services Equipment” means any apparatus, equipment and cabling provided by Dynamic or its Third Party Supplier at a Site as an essential part of providing Services under the terms of this Agreement;
“Services” means the supply of 1st and 2nd line broadband technical helpdesk Services provided by Dynamic to the Client as specified in the Order and
“Service” shall have a corresponding meaning;
“Site” means the premises or other locations from and to which Services are to be provided to the Client as specified in the Order;
“Support Service” the support services described in clause 7;
“Target Go Live Date” means the target date agreed between Dynamic and the Client for the commencement of Services as set out in an Order or as subsequently revised by the Client in accordance with the terms of this Agreement;
“the Act” means the Communications Act 2003;
“the Code” means any Code of Practice relevant to the Services issued by PhonepayPlus or OFCOM as amended from time to time;
“Third Party Supplier” means the supplier from whom Dynamic buys the services which it resells to the Customer under this Agreement.
“this Agreement” means this Service Agreement and its Schedules and any Order;
“Unprotected Circuit” means a Circuit the local tail of which is unprotected copper or fibre;
2.1 The Condition and Schedule headings are for convenience only and shall not affect the interpretation of this Agreement.
2.2 References to the singular include the plural and vice versa, and references to one gender include the other gender.
2.3 Any phrase introduced by the expressions “includes”, “including” or “in particular” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
2.4 Any reference to a statute, statutory provision or subordinate legislation (together “legislation”) shall (except where the context otherwise requires)
(i) be deemed to include any bye-laws, licences, statutory instruments, rules, regulations, orders, notices, directions, consents or permissions made under that legislation and
(ii) shall be construed as referring to any legislation which replaces, re-enacts, amends or consolidates such legislation (with or without modification) at any time.
2.5 Unless specifically provided to the contrary all notices under this Agreement shall be in writing.
2.6 References to times are to London times.
2.7 Any reference to an “hour” means an hour in a day and any reference to a “day” means a period of 24 hours running from midnight to midnight.
2.8 Except to the extent that they are inconsistent with the definitions and interpretations in this Agreement or are otherwise defined in this Agreement, the definitions and interpretations in the General Terms & Conditions shall apply to this Agreement.
2.9 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.
2.10 References to Clauses and Schedules are to the Clauses and Schedules of this Agreement.
3. The Service Agreement
3.1 The General Terms and Conditions shall apply in relation to the supply of the Services and the terms of this Agreement shall apply between the parties as if the General Terms and Conditions were incorporated into this Agreement.
3.2 Notwithstanding Clause 2.1 the General Terms and Conditions shall remain fully effective and unamended, in relation to the supply of any goods and or services other than the Service.
4. Commencement and duration of this Agreement
4.1 This Agreement commences on the date that it is signed by duly authorised representatives of Dynamic and will continue unless or until terminated by either Party in accordance with the terms of this Agreement.
5. Duration of Services
5.1 For the duration of this Agreement Dynamic agrees to:
5.1.1 provide the Client with the Services on the terms of this Agreement;
5.1.2 exercise the reasonable skill and care of a competent communications provider in providing the Service and if required, in determining how best to provide the Service to a Site;
5.1.3 use its reasonable endeavours to provide the Service by the Target Go Live Date and in accordance with the service levels set out in this Agreement but all dates are estimates and except as set out in the service guarantee provisions, Dynamic has no liability for failure to meet any date;
5.2 It is technically impracticable to provide a fault free Service and Dynamic does not undertake to do so. Dynamic agrees to (and or ask the Third Party Supplier to) repair any faults in accordance with the service standards as set out in this Agreement.
5.3 The Service Minimum Period for Leased Line Services shall be as provided for in the relevant Order.
6. Description of Leased Line Services
6.1 Leased Line Services are provided as:
61.1 Internet Leased Line Services – a dedicated, private, fixed capacity circuit delivered from the Third Party Supplier Network to the Customer Site with Internet connectivity. These Services may share infrastructure with the Third Party Supplier Network and/or that of other Service Providers. Internet Leased Line Services are delivered as a Fully Managed Service with a Third Party Supplier supplied router, 24/7 remote monitoring and management by the Third Party Supplier network operations.
6.1.2 Unmanaged Internet Leased Line Services – a dedicated; private, fixed capacity circuit delivered from the Third Party Supplier Network to the Customer Site with Internet connectivity. These Services may share infrastructure with the Third Party Supplier Network and/or that of other Service Providers. Internet Leased Line Services are delivered to the Customers premises, but it is the Customers responsibly to supply the termination equipment and to monitor.
6.1.3 Point to Point Leased Line Services– a dedicated; private, fixed capacity circuit delivered point to point between Customer nominated sites. Point to Point Leased Line Services do not share infrastructure with the Third Party Supplier Network and will be delivered as a standalone Service which will not be monitored by the Third Party Supplier.
7. Orders for Leased Line Services
Orders for Leased Line Services shall be completed according to process set out in this clause.
7.1 Quotations can be generated online via the Dynamic portal.
7.2 Subject to clause 6.4 shall only submit the Order to the Third Party Supplier upon receipt of a valid Order from the Customer for the Services. All quotations made by Dynamic shall be deemed to be made subject to the terms and conditions of this Agreement.
7.3 If excess construction charges are applicable in order to provide the Services Dynamic shall notify the Customer within a reasonable time of becoming aware of the same, in writing of the charges and the reasons for them. The Customer shall indicate acceptance of the excess construction charges in writing.
7.4 The provision of an Order by the Client shall constitute an offer to acquire the Services specified in the Technical Requirements Document subject to:
(i) confirmation that the Services can be provided and
(ii) where excess construction charges are applicable, acceptance of those charges by the customer within 7 days of being notified.
7.5 No Order shall be binding on Dynamic until that Order has been accepted by Dynamic by notice to the Customer.
7.6 Upon acceptance by Dynamic the Services shall be provided under the terms of this Agreement.
7.7 A request for the upgrade or downgrade of an existing Service shall not be considered a request for services in terms of this clause 6 but on acceptance by Dynamic will be deemed an amendment of the existing Order under which those Services are provided.
8. Support Services
8.1 Help Desk Support During the hours of Service specified in Clause 7.2,
Dynamic will provide a client service and administration telephone help desk facility (“Help Desk”) for the benefit of the Client. Dynamic shall accept calls for English language telephone support in connection with Orders and Incidents during the hours of Service specified in Clause 7.2.
8.2 Hours of Service
8.2.1 The Help Desk is available to receive calls for reporting on all Incidents via telephone during the Working Hours on Working days.
8.2.2. An out of hours service is available where provided for in the Agreement and at an additional cost.
8.2.3 The support team will aim to deliver proactive updates via email and / or phone, which ever is deemed to be most suitable.
8.3 Scheduled and Emergency Maintenance. Scheduled and Emergency Maintenance, where provided, will be carried out in accordance with the Agreement and pursuant to Addendum 9 (Proactive Services)
9. Service Management
9.1 Incident Reporting
9.1.1 The Customer must submit an Incident report in respect of any Incident to Dynamic.
9.1.2 All Incident Reports submitted by the Customer must provide a complete description of the Incident and any information reasonably requested by Dynamic.
9.2 Incident Response Timescales
9.2.1 Dynamic shall use best endeavours to report an Incident to the Third Party Supplier within 1 hour of receipt of an Incident Report and shall use best endeavours to make an update on an Incident available to the Customer via email as soon as reasonably practicable, following receipt of an update from the Third Party Supplier.
9.2.2 The Customer understands and accepts that as this is a resold service, Dynamic has no control over incident response time and the Customer holds Dynamic harmless for any loss of service that is caused by circumstances beyond Dynamic’s control. If Dynamic becomes aware that due to the complexity of the Incident or where Dynamic is dependent upon involvement of further third party for resolution of the Incident is required such that Incident response times are likely to be unduly drawn out, Dynamic reasonable endeavours to eliminate or reduce the impact of the Incident on the Service by provision of a workaround, with permanent correction to follow or if necessary seek assistance of its Third Party Supplier to ensure the same.
9.3 Clearance of Incidents
Dynamic will clear an Incident reported to Dynamic by the Customer in accordance with this Agreement and an Incident Report will be considered to have been cleared where either:
9.3.1 it is corrected by Dynamic (including the provision of a temporary fix);
9.3.2 Dynamic has investigated the Incident and Dynamic’s initial fault diagnostic testing indicates that the Incident is not found and/or is not the fault of Dynamic or it’s Third Party Supplier; and this has been confirmed by Dynamic to the Customer.
10. Service Availability and Credits
10.1 Overall Service Availability
10.1.1 Dynamic aims to provide the Service with a target of 100% availability at all times, subject to the terms of this Agreement.
10.1.2 If there is an Outage, based on the Third Party Supplier’s data, Dynamic will apply a reduction to the Customer’s rental charge for the Service in a sum equal to that provided to Dynamic by the Third Party Supplier and as notified by Dynamic to the Customer.
10.1.3 For the purposes of this clause 9.1, overall service availability excludes:
a) scheduled Maintenance Events as described in clause 8.3;
b) Client-caused or third party-caused outages or disruptions; or
c) outages or disruptions attributable in whole or in part to force majeure events;
10.1.4 For the purpose of calculating Availability, “Unavailable Time” means a period of time when there is a total break in transmission.
10.2 Limit on compensation
10.2.1 Any Service Credits due to the Customer shall be the Customer’s sole and exclusive remedy with respect to such failures and shall be in lieu of any other remedy which the Customer may have at law.
10.2.2 The maximum compensation for Unavailable Time the Customer can receive in any month is an amount equal to 100% of the Rental due in respect of that Service for the month in which the failure(s) occur and the maximum compensation in aggregate the Customer can receive is an amount equal to 25% of the annual rental for the period covered by a 12 months cycle, the first such cycle starting on the Go Live Date.
10.3 How Dynamic will pay Service Credits
10.3.1 Any compensation payable under clause 9.2 above will either be offset against the Installation Charges by Dynamic on the Customer’s invoice in respect of the Installation Charges (where applicable) or will be credited on the Customers invoice for Rental for the following Billing Period unless the Circuit is terminated in which case a specific payment will be made. Dynamic may offset all or part of any such amounts against any outstanding amounts due for the Service which has not been paid by the Client, except where these amounts may be disputed.
10.4 Exclusions from service availability and service credits
The service levels, service guarantees and any Service Credits will not apply if:
10.4.1 the failure of the Service is due to the Client’s own network or equipment or any other network or equipment outside the scope of the Agreement; or
10.4.2 the Customer is in breach of any part of this Agreement or Dynamic suspends the Service or any part of it in accordance with this Agreement; or
10.4.3 through no fault of its own or because of circumstances beyond its reasonable control, Dynamic, it’s agents or sub-contractors are unable to carry out any necessary work at, or gain access to the Customer’s Site or the Customer fails to agree an appointment date or work is aborted; or
10.4.4 the Customer and Dynamic agree a different timescale for performance of the Service, but will apply to any new Target Go Live Date agreed, provided that the new date is after any previous Target Go Live Date(s);or
10.4.5 reasonable assistance is required or information is reasonably requested by Dynamic, it’s Third Party Supplier or a Service Provider from the Customer and such assistance or information is not provided; or
10.4.6 through no fault of its own, Dynamic or it’s Third Party Provider is unable to obtain any necessary permissions or consents required in connection with the performance of a particular service level; or
10.4.7 the failure is due to a Force Majeure event; or
10.4.8 the failure is due to a scheduled Service outage; or
10.4.9 the failure is due to an inaccurate Order being submitted by the Customer; or
10.4.10 the fault is not reported in accordance with clause 8.1
11. Charges Mandated By Service Provider
Dynamic reserves the right to pass on to the Customer on a cost-plus basis (adding up to 25%) any charges levied by the Service Provider to which it is exposed as a result of the Customer’s actions.
12.1 All Services Equipment remains the property of Dynamic and/or it’s Third Party Supplier at all times.
12.2 The Customer agrees to:
12.2.1 prepare the Site and provide a suitable place, conditions, connection points and electricity for Dynamic and/or its Third Party Supplier or carrier Equipment at the Site in accordance with Dynamic’s reasonable instructions, if any; and
12.2.2 obtain all necessary consents, including for example, consents for any necessary alterations to buildings, permission to cross other people’s land, wayleave agreements or permission to put Dynamic (or it’s Third Party Supplier)/carrier Equipment on their property.
12.2.3 The Customer is responsible for Dynamic or it’s Third Party Supplier equipment and agrees to take reasonable steps to ensure that nobody (other than someone authorised by Dynamic) adds to, modifies or in any way interferes with it. The Customer will be liable to Dynamic for any loss of or damage to Dynamic or it’s Third Party Supplier Equipment, except where such loss or damage is due to fair wear and tear or is caused by Dynamic, its agents or subcontractors, or anyone acting on Dynamic’s behalf.
13. Connection of Equipment
Any equipment connected to the Service must be:
13.1.1 technically compatible with the Service and not harm the Network, the Service or Dynamic Equipment or another party’s network or equipment;
13.1.2 connected and used in line with any relevant instructions or laws; and
13.1.3 connected and used in line with any relevant standards including, in the order of precedence set out below:
(i) any legal requirements imposed upon the parties including requirements arising from General Condition 2 set under section 45 of the Communications Act 2003;
(ii) any relevant specification notified by OFCOM in implementation of the recommendations of the Network Interoperability Consultative Committee;
(iii) any recommendations by the European Telecommunications Standards Institute; and
(iv) any recommendations by the Telecommunications Standards Bureau (formerly the International Telegraph and Telephone Consultative Committee) of the International Telecommunication Union.
13.1.5 Dynamic will not be liable for failure to meet any service level or other obligations under this Agreement if any equipment is found to be connected otherwise than in accordance with this clause, or which is connected by anyone other than Dynamic, it’s Third Party Supplier or authorised representatives..
13.1.6 Dynamic reserves the right to disconnect any Customer equipment if the Customer does not fulfil its obligations under this Clause 12 or if in the reasonable opinion of Dynamic Customer Provided Apparatus is liable to cause the death of, or personal injury to any person.
14. Access and Site Regulations
14.1 The Customer agrees to take reasonable steps to provide access to the Customer’s Site including for the purpose of installation and use of the Dynamic Equipment at the Customer’s Site.
14.2 Dynamic agrees to observe the Customer’s reasonable Site safety and security requirements.
14.3 The Customer agrees to a suitable and safe working environment for Dynamic, it’s agents or subcontractors at the Customer’s Site. The Customer agrees to indemnify Dynamic against all loss, damages, liabilities, costs and expenses arising or incurred in respect of any actions, claims or legal proceedings which are brought or threatened against DYnamic if the Customer is in breach of this sub-clause. The limitation of liability provisions of this Agreement do not apply to this indemnity.
14.4 It is the responsibility of the Customer to carry out any making good or decorator’s work required but Dynamic accepts responsibility for any property damage caused by Dynamic’s, it’s agents or subcontractors negligence subject to the limitation of liability provisions of this Agreement.
15.1 The Customer shall pay to Dynamic the Installation Charges and Rental and any other charges due under this Agreement. Such charges shall be invoiced monthly in advance. The first Billing Period shall commence on the Go Live Date.
15.2 All Charges payable hereunder by the Customer shall be payable to Dynamic in British Pounds Sterling in immediately available funds no later than 7 days after the date of Dynamic's invoice.
15.3 Where any Go Live Date is delayed at the Customer’s request or by virtue of the Customer’s act, neglect or failure to fulfil its obligations hereunder, the Rental for the first Billing Period and Installation Charges for that Service shall be payable no later than the Target Go Live Date for that Service unless otherwise agreed in writing between the Parties.
15.4 Dynamic shall be entitled to increase Rental and other charges payable by the Customer after expiry of the Minimum Period from time to time by giving the Customer not less than four (4) weeks’ prior written notice.
15.5 The Charges are exclusive of all applicable taxes, including Value Added Tax, sales taxes and duties of levies imposed by any authority, government department, all of which, if any, shall be assumed and paid promptly when due by the Client.
15.6 Without prejudice to Dynamic’s right to treat non-payment or late payment as a repudiatory breach of this Agreement, in the event of non-payment of any invoice which is not the subject of a bona fide dispute Dynamic reserves the right to charge daily interest on any outstanding amounts until payment is received in full at the rate set out in the Late Payment of Commercial Debts (Interest) Act 1998 as current from time to time whether before or after judgment until the date actual payment is received together with all external costs reasonably and necessarily incurred by Dynamic in securing such payment and/or obtaining such judgment, as the case may be.
15.7 All sums due to Dynamic under this Agreement shall be payable by the Customer in full (without any set-off, deductions or withholding whatsoever) by Bank Transfer or Credit / Debit Card.
15.8 Dynamic reserves the right at any time to require the Customer to issue a deposit, irrevocable letter of credit or other form of security acceptable to Dynamic if the Client’s financial circumstances or payment history is or becomes unacceptable to Dynamic.
16. Use of the Service
16.1 The Client shall use the Services strictly in accordance with any reasonable operating instructions issued by Dynamic from time to time.
16.2 The Customer shall not itself or knowingly permit any User to use the Network or Services to do any of the following:
16.2.1 publish, post, distribute or disseminate defamatory, infringing, obscene, indecent or other unlawful material or information;
16.2.2 threaten, harass, stalk, abuse, disrupt or otherwise violate the rights (including rights of privacy and publicity) of others;
16.2.3 engage in illegal or unlawful activities through the Network;
16.2.4 knowingly make available or upload files that contain software or other material, data or information not owned by or licensed to the Customer;
16.2.5 knowingly make available or upload files that contain a virus or corrupt data;
16.2.6 falsify the true ownership of software or other material or information contained in a file that the Customer, makes available via the Network;
16.2.7 “spam” or otherwise deliberately abuse any part of the Network;
16.2.8 obtain access, through whatever means, to notified restricted areas of the Network.
16.3 If the Customer becomes aware that any User or Additional User is using the Network to perform any of the activities listed in Clause 4.3 it shall enforce the applicable terms in its agreement with its User(s) and shall use all best endeavours to stop such User from doing so. In the event that Dynamic becomes aware that a User or any Additional User is performing any of the activities listed in Clause 4.3, Dynamic shall bring the breach to the attention of the Customer in writing. If Dynamic have not received, within one (1) Business Day of dispatch of such a message, a satisfactory response from the Customer detailing the actions that have been taken to stop a User or Additional User performing in this way, which actions may include restricting the access of the User or Additional User to the Network or disconnecting the User or Additional User from the Network, then shall have the right to restrict the access of and/or disconnect the User(s) or Additional User(s) in question, and if necessary the entire Service, from the Network. If Dynamic exercises its rights to disconnect a User or Additional User it will notify the Client as soon as reasonably practicable in the circumstances.
16.4 Each Party shall provide the other with all reasonably necessary co-operation, information and support to prevent and/or stop any misuse of the Network by Users.
17. Limitation of Liability
17.1 Nothing in this Agreement shall exclude or restrict either Party’s liability for fraud, death or personal injury resulting from that Party’s negligence.
17.2 Neither Party shall be liable to the other under or in connection with this Agreement, whether in contract, tort (including negligence),
misrepresentation (other than where made fraudulently), breach of statutory duty or otherwise for:
17.2.1 any loss of business, contracts, profits, anticipated savings, goodwill, or revenue;
17.2.2 any loss or corruption of data; and/or
17.2.3 for any indirect or consequential loss whatsoever incurred by either Party, whether or not the Party relying on this Clause 17.2 was advised in advance of the possibility of any such loss.
17.4 Except in relation to Clauses 16.3 and 16.4 and the indemnity in Clause
17.2, the total aggregate liability of either Party to the other under or in connection with this Agreement shall not exceed the lesser of one hundred thousand pounds (£100,000) or the Charges due to Dynamic in the previous 12 month period for any one event or series of events.
17.5 In relation to Clause 17.3 and 17.4 only, the total aggregate liability of the Customer to Dynamic shall not exceed two hundred thousand pounds (£200,000) for any one event or series of events.
17.6 The Customer shall be liable to Dynamic for all liabilities, claims and costs arising directly from the acts and omissions of any employees, agents, subcontractors of third parties (including Users) using the Service through the Customer, relating to the Customer’s use of the Services except where such liabilities, claims and costs arise from Dynamic’s negligence or breach of this Agreement.
17.7 The Customer agrees to indemnify defend and hold harmless Dynamic against all liabilities claims, liabilities, losses and costs (including reasonable and properly incurred legal costs) arising directly in connection with the Customer’s use of the Service by the Customer’s Users or any third party using the Service through the Customer except where such claims arise from Dynamic negligence or breach of this Agreement.
18.1 This Agreement may be terminated without penalty:
18.1.1 by Dynamic providing sixty days notice in writing provided that such notice shall not expire before the end of the Minimum Period; or
18.1.2 by the Customer providing ninety days notice in writing no later than ninety days prior to the expiry of the Minimum Period or any subsequent renewal.
18.2 Notwithstanding the termination of this Agreement the terms of this Agreement shall remain in force in respect of any Order until the expiry of the Minimum Period for the provision of Services in that Order. For the avoidance of doubt, the termination of this Agreement shall not be effective until the Minimum Period for any existing Order has expired.
18.3 Notwithstanding any other rights under this Agreement, either Party may terminate this Agreement immediately in the event that: -
18.3.1 the other Party holds any meeting with or proposes to enter into or has proposed to it any arrangement or composition with its creditors (including any voluntary arrangement as described in the Insolvency Act 1986); has a receiver, administrator, or other encumbrancer take possession of or appointed over or has any distress, execution or other process levied or enforced (and not discharged within 7 days) upon the whole or substantially all of its assets; ceases or threatens to cease to carry on business or becomes unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986; or
18.3.2 if either Party commits a material breach or other persistent breach of this Agreement which in the case of a breach capable of being remedied, is not remedied within thirty (30) days of a written request by the other Party to remedy the same.
18.4 Dynamic may immediately terminate or suspend all or any part of this Agreement or the Services if:
18.4.1 Ofcom, PhonepayPlus or the Third Party Supplier determine, or Dynamic reasonably considers, that use of the Services by the Customer or any User or Additional User
(i) does not constitute Appropriate Use
(ii) is in breach or may be in breach of the Code or any other relevant statutory or regulatory act, regulation, code or similar
(iii) is fraudulent or illegal or may be fraudulent or illegal; or
18.4.2 if Ofcom or any other authority of competent jurisdiction revokes the supplier’s authorisation as Public Electronic Communications Network under the Act and as a result the Third Party Supplier can no longer legally comply with its material obligations to Dynamic and thus Dynamic can no longer comply with its obligations under this Agreement and the Service Agreements.
19. Consequences of Termination
19.1 Except as provided for in clause 18.2, in the event of the termination of this Agreement for whatever reason the Customer shall:
19.1.1 cease to use any of the Services, and
19.1.2 permit Dynamic or any nominated representative of Dynamic to enter the Sites during any Business Day for the purpose of removing any or all of the Services Equipment.
19.1.3 permit Dynamic or any nominated representative of Dynamic to enter the Sites during any Business Day for the purpose of removing any or all of the Services Equipment.
19.2 In the event of the Customer terminating their service prior to the contractual period purchased, the Customer agrees to pay any remaining rental charges from the date of cancellation to the date the contractual period finishes. Dynamic reserve the right to levy a charge on the remaining period. For example, should three months remain on the contractual period and the service ceases prior to this final date, Dynamic reserve the right to levy a single charge of three months collectively.
19.3 In the event of the Customer cancelling the order once it has been placed, the Customer agrees to pay Dynamic any charges levied by the carriers or Third Party Supplier to Dynamic.
20. Agreement & Addendums Amendment
Dynamic reserve the right to add to and/or amend the Conditions at any time. Such changes shall be notified to the Dynamic by posting in the policies section of Dynamic's website. Changes in this manner shall be deemed to have been accepted if the Customer continues to use the Service after a period of Fourteen (14) days from the date of posting on the website.
ADDENDUM 5: Software As A Service (SAAS)
The terms of this Addendum shall apply to any SAAS Services provided by Dynamic Networks Group under this Agreement in addition to the General Terms and Conditions (in so far as those are applicable to the provision of SAAS Services). Where there is a conflict between the General Terms and Conditions and this Addendum, the terms in this Addendum shall prevail. Clauses referred to in this Addendum refer to Clauses within this Addendum unless otherwise stated.
2.1 Dynamic will make available a designated Platform to the Customer by setting up an account for the Customer and providing to the Customer login details for that account as soon as practicable following the Commencement Date.
2.2 Subject to the limitations set out in Clause 2.3 and the prohibitions set out in Clause 2.4, Dynamic hereby grants to the Customer a non-exclusive licence to use the designated Platform for the Permitted Purpose via any standard web browser and/or application, in accordance with the Specification during the Term.
2.3 The licence granted by Dynamic to the Customer under Clause 4.2 is subject to the following limitations:
(a) the Platform may only be used by the named users identified in the Specification, providing that the Customer may change, add or remove a designated named user in accordance with the procedure set out by Dynamic from time to time;
(b) the Platform must not be used at any point in time by more than the number of concurrent users specified in the Specification (or as otherwise notified and agreed by Dynamic), providing that the Customer may add or remove concurrent user licences in accordance with the procedure set out by Dynamic;
(c) the Platform may only be used by the employees, agents and subcontractors of the Customer and:
(i) where the Customer is a company, the Customer's officers;
(ii) where the Customer is a partnership, the Customer's partners; and
(iii) where the Customer is a limited liability partnership, the Customer's members;
(d) the Customer must comply at all times with the terms of the acceptable use policy in force from time to time and which can be found at www.Dynamic.co.uk/acceptableusepolicy , and must ensure that all users of the Platform agree to and comply with the terms of that acceptable use policy;
2.4 Except to the extent mandated by applicable law or expressly permitted in the Agreement, the licence granted by Dynamic to the Customer under this Clause 4 is subject to the following prohibitions:
(a) the Customer must not sub-license its right to access and use the Platform or allow any unauthorised person to access or use the Platform;
(b) the Customer must not frame or otherwise re-publish or re-distribute the Platform; and
(c) the Customer must not alter or adapt or edit the Platform save as expressly permitted by the Documentation.
2.5 For the avoidance of doubt, the Customer has no right to access the object code or source code of the Platform, either during or after the Term.
2.6 All Intellectual Property Rights in the Platform shall, as between the parties, be the exclusive property of Dynamic.
2.7 The Customer shall use all reasonable endeavours to ensure that no unauthorised person will or could access the Platform using the Customer's account.
2.8 The Customer must not use the Platform in any way that causes, or may cause, damage to the Platform or impairment of the availability or accessibility of the Platform, or any of the areas of, or services on, the Platform.
2.9 The Customer must not use the Platform:
(a) in any way that is unlawful, illegal, fraudulent or harmful; or
(b) in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
3. Support Services and Upgrades
3.1 During the Term Dynamic will provide the Support Services to the Customer, and may apply Upgrades to the Platform, in accordance with the Service Level Agreement set out in the Specification.
3.2 Dynamic may sub-contract the provision of any of the Support Services without obtaining the consent of the Customer.
4. Customer Materials
4.1 The Customer grants to Dynamic during the Term a non-exclusive licence to store, copy and otherwise use the Customer Materials on the Platform for the purposes of operating the Platform, providing the Services, fulfilling its other obligations under the Agreement, and exercising its rights under the Agreement.
4.2 Subject to Clause 4.1, all Intellectual Property Rights in the Customer Materials will remain, as between the parties, the property of the Customer.
4.3 The Customer warrants and represents to Dynamic that the Customer Materials, and their use by Dynamic in accordance with the terms of the Agreement, will not:
(a) breach any laws, statutes, regulations or legally-binding codes;
(b) infringe any person's Intellectual Property Rights or other legal rights; or
(c) give rise to any cause of action against the Dynamic or the Customer or any third party, in each case in England and Wales and under English law.
4.4 Where Dynamic reasonably suspects that there has been a breach by the Customer of the provisions of this Clause 5, Dynamic r may:
(a) delete or amend the relevant Customer Materials; and/or
(b) suspend any or all of the Services and/or the Customer’s access to the Platform while it investigates the matter.
4.5 Any breach by the Customer of this Clause 5 will be deemed to be a material breach of the Agreement for the purposes of Clause [remedies ].
5. Platform Trial
Dynamic may, in special circumstances, set up a Platform Trial. The Customer may access the Platform Trial for an agreed period, during which time all of the provisions of this Agreement shall apply, save as follows:
5.1. the Customer shall have no obligation to pay any Charges in respect of the Platform Trial;
6.1 The Customer warrants and represents to the Provider that it has the legal right and authority to enter into and perform its obligations under the Agreement.
6.2 Dynamic warrants and represents to the Customer:
6.2.1 that it has the legal right and authority to enter into and perform its obligations under the Agreement;
6.2.2 that it will perform its obligations under the Agreement with reasonable care and skill;
6.2.3 that it will use it’s reasonable endeavours that the Platform will operate without Defects and will perform substantially in accordance with the Documentation (subject to any upgrades and/or outages);
6.2.4 that the Platform will be hosted in accordance with the requirements set out in the Specification, and will be available to the Customer in accordance with the uptime commitments.
6.3 the Platform (excluding for the avoidance of doubt the Customer Materials) will not:
6.3.1 breach any laws, statutes, regulations or legally-binding codes;
6.3.2 infringe any person's Intellectual Property Rights or other legal rights;
6.3.3 give rise to any cause of action against Dynamic or the Customer or any third party, in each case in England and Wales and under English law; and
6.3.4 itwill use it’s best endeavours to ensure that the Platform will remain free from viruses and other malicious software programs.
6.4 The Customer acknowledges that:
6.4.1 complex software is never wholly free from defects, errors and bugs, and Dynamic gives no warranty or representation that the Platform will be wholly free from such defects, errors and bugs;
6.4.2 Dynamic does not warrant or represent that the Platform will be compatible with any application, program or software or API not specifically identified as compatible in the Specification; and
6.4.3 Dynamic will not and does not purport to provide any legal, taxation or accountancy advice under the Agreement or in relation to the Platform and (except to the extent expressly provided otherwise) Dynamic does not warrant or represent that the Platform will not give rise to any civil or criminal legal liability on the part of the Customer or any other person.
ADDENDUM 6 Dynamic Back Up Services and other Licenced Services
The terms of this Addendum shall apply to any Back Up and Other Licenced Services provided by Dynamic under this Agreement in addition to the General Terms and Conditions (in so far as those are applicable to the provision of Back Up and Other Licenced Services). Where there is a conflict between the General Terms and Conditions and this Addendum, the terms in this Addendum shall prevail. Clauses referred to in this Addendum refer to Clauses within this Addendum unless otherwise stated.
2. Service Overview
Dynamic will deliver an in house managed Backup service (including all Equipment, Software and Systems), and Third Party Back Up software solutions as set out in the Specification, to enable:
2.1. copies of Backup Data protecting the Data; and
2.2. recovery of Backup Data to the Customer’s servers following Data loss. Dynamic will install where necessary software on the Customer’s servers and configure the Equipment according to an agreed Backup Schedule. Dynamic will monitor and manage the backup infrastructure meeting the agreed Backup Schedule.
For the purpose of this Addendum, the following definitions apply:
“Backup Data” refers to the Customer’s information and data which is the subject of the Services and which is managed and backed up by Dynamic pursuant to the Agreement. This is classed as source data or data that is backed up prior to applying any de-duplication or compression; #
“Backup Data Retention(s)” the period that Backup Data is stored within the backup service.
Where there is an on-site appliance as part of the agreement, Daily and Weekly backups are stored in accordance with the above.
“Backup Schedule(s)” the frequency of the backups. The default schedule is that backup data will be backed up once per day typically after the Working Day has completed;
“Equipment” includes collectively or individually Dynamic’s computer and other associated equipment (including any part or parts thereof) for use by either Dynamic or the Customer at the Site (or any subsequent site agreed in writing by Dynamic) in the provision of the Services including any third-party Hardware and Software;
“Program(s)” the computer program(s) and software owned by or licensed by a third party to Dynamic, including but not limited to all coding, sequences and interfaces that may be designed, written or developed by Dynamic in the course of the Agreement;
“Services Material” any and all works of authorship, products and materials developed, written or prepared by Dynamic in relation to or for the purpose of or by reason of the Agreement (whether alone or jointly with the Customer or any other independent contractor of the Customer and on whatever media) including, without limitation, any and all computer programs, data, diagrams, reports, specifications, studies, tests and inventions and all drafts thereof and working papers/documentation relating thereto and that shall include but not be limited to Customer identification keys and all derived fields created from the Data;
“Service Level Agreement (“SLA”)” the Service level obligations set out in the Agreement.
“SMC” Dynamic’s Service Management Centre providing Workers responsible for delivery of the Services.
“Site(s)” the Customer’s premises where the Services are to be carried out as set out in the Agreement;
“Software” all computer programs supplied by and/or used by and/or procured by Dynamic for the provision of the Services;
“System” collectively or individually the computer equipment and associated equipment (including any part or parts thereof) for use by either Dynamic or licensed by Dynamic to the Customer at the Sites for the provision of the Services.
4. Back up schedule
4.1. The Service is tailored to the Customer with Dynamic providing a default backup schedule that provides for a backup copy of the system data and databases to be copied to a backup master server (the “Backup Schedule”).
A default Backup Schedule can be modified by agreement of both parties to meet the Customer’s requirements. Subject to the change management the Customer may request an alternative “Backup Schedule” or “Backup Data Retention” to meet specific industry, legal, regulatory, audit or best practice demands. Dynamic shall use all reasonable endeavours to respond to Data restoration requests promptly and it is anticipated that the majority of individual files can be rapidly recovered from the backup information held on the backup master server, with the recovery process being initiated as soon is reasonably practicable after Dynamic has become aware of the need to do the same.
4.2. Dynamic recommend that data is backed up for a minimum period of three months, thereafter it will be archived and stored to a secure storage device. All quotes will be provided on this basis. In the event that the Customer chooses not to accept our minimum period, we will liaise with the Customer in respect of their needs in accordance with 3.1. above, but accept no liability for any disruption to or loss of data in the event that such a data loss/failure, would not have occurred if our minimum recommendations had been adopted.
4.3. Unless otherwise agreed with the Customer and stipulated in the Agreement, all offsite backups held on Dynamic’s servers at the SMC are retained for seven days, thereafter they will be archived, unless Dynamic receive a notification from the Customer, within that seven day period, that the Customer requires it’s data restoring from the offsite backup.
The backup service is dependent on the Customer’s own computer systems, network and data communication links. If required, Dynamic will advise the Customer prior to commencement of the Services as to the performance characteristics required including, without limitation, the size of the networks to enable the transmission of Backup Data to meet the agreed Backup Schedule. For the avoidance of doubt, the Customer shall be responsible, without limitation, for any setup, ongoing bandwidth requirements, degradation in services, that may occur, way-leave, landlord permission, and associated planning requirements or similar upon which the Service is dependent.
6. Change Management
Dynamic will install any Software and Equipment required usually within the Working Day. All reconfiguration, rescheduling and performance tuning of the Equipment and/or Software will be agreed by both Parties and carried out by Dynamic upon the Customers written confirmation where it will affect retention periods.
7. Term and Termination
This Addendum shall commence on the Commencement Date and shall continue for the Initial Term stated in Agreement subject to the provisions of clause 16 (Termination) of the General Terms and Conditions. Thereafter this Addendum shall automatically renew for additional periods of twelve (12) months until terminated in accordance with clause 16 of the General Terms and Conditions.
8. Effects of Termination
In addition to clause 17 (Consequences of Termination) of the General Terms and Conditions:
8.1 On termination of this Addendum for any reason:
8.1.1 Dynamic shall immediately cease provision of the Services but may provide services for a further period in accordance with Clause 8.2;
8.1.2 any licence to use the Software, Equipment, Programs or any other licence granted by Dynamic to the Customer shall terminate;
8.1.3 any licence to use Customer data or Backup Data granted by the Customer to Dynamic shall terminate;
8.1.4 the Customer shall allow Dynamic and its employees, agents and subcontractors reasonable time and access to the Site to remove the Equipment;
8.1.5. The accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.
8.2 The Customer may, no less than 90 ninety days (or such shorter period as Dynamic may agree in writing) prior to the termination of this Agreement request Dynamic to offer reasonable assistance in transitioning the Services from Dynamic to the Customer or its nominated replacement supplier. Dynamic may, subject to agreeing reasonable terms and fees (to be agreed and such agreed Charges paid in advance), provide such additional services for a maximum period of ninety days. Dynamic shall use its reasonable endeavours to agree an appropriate plan, co-operate and support the Customer to achieve an orderly transfer.
9. Service Availability
The SMC will be available for Priority 1 incidents/problems, in accordance with the service level agreed with the Customer in the Agreement and for Priority 2 and 3 incidents/problems/service requests, available during the Working Hours. Outside of these hours, Priority 2 and 3 incidents/problems/service requests will be logged the next Business Day.
Dynamic does not warrant that the Customer’s use of the Service will be uninterrupted or error free.
10. Service Levels
Dynamic offers SLAs for the time to start working on issues raised to the SMC. When an incident, problem or service request is received and logged as a service ticket, they are assigned a priority based on Dynamic’s experience and at its sole discretion, which has a targeted graded and escalated response time (“target Response Time”), as below:
Priority Target Response Time P1 – Severe Business Impact – 1 hour initial response
P2 – Partial Business Impact – 2 hour initial response
P3 – Minor Business Impact – 4 hour initial response
Where P1 classified incidents, problems and service requests are identified by the Customer, they need to be escalated to the Dynamic SMC via telephone, 0333 210 1231, in order to receive the appropriate response.
The target Response Time is subject to Agreement criteria for P1 classified incidents. P2 and P3 classified incidents, problems and service requests may be reported by either telephone, 0333 444 1231 or email firstname.lastname@example.org .
The Target Response Time for P2 and P3 classified incidents is based on the Working Hours.
The Priority definitions are:
P1 - SEVERE BUSINESS IMPACT a service failure of severe degradation. Customer is unable to access any business resources or users are unable to access critical business applications.
P2 - MODERATE BUSINESS IMPACT a partial service failure or mild degradation. Customer is unable to access some but not all business resources.
P3 - MINOR BUSINESS IMPACT minor service impact. Non-critical bug. Customer is able access almost all business resources.
10.2 Target Service Levels
The estimated target for provision of Service is that in excess of 90% of submitted and active servers and/or desktops will successfully complete to the backup master server according to the agreed Backup Schedule, excluding: failure and/or non-availability of the Customer’s own computer networks, equipment (including desktops) and data communications links. Dynamic will use its reasonable endeavours to ensure that the Service continues to be compliant with on-going legal standards and requirements.
Dynamic does not access the Backup Data, apart from to automatically index individual filenames and the directory structure to aid identification and recovery of files by the Customer. Dynamic will recommend and if agreed install anti-virus software. If the Customer does not accept Dynamic’s recommendation in respect of anti-virus software, the Customer does so at it’s own risk and Dynamic accepts no liability for any disruption to or loss of data as a result of the Customer’s failure to follow Dynamic’s recommendation and or install adequate anti-virus software.
Dynamic monitors the Equipment (and Software) against the Target Service Levels. This monitoring is undertaken within the backup master server by Dynamic. The monitoring includes critical components of the Equipment, interpreting error logs in order to seek to ensure that Data is backed up in accordance with this Addendum.
Dynamic will produce exception reports, notifying the Customer of any backup service failures, where an appropriate fee is agreed or it forms part of the Agreement. In addition, Dynamic will (where an appropriate fee is agreed or it forms part of the Agreement) produce monthly service reports detailing achievement against Target Service Levels, Customer’s servers and/or desktops protected, service and usage characteristics.
14. Dynamic Responsibilities
As required for the performance of the Service Dynamic will:
14.1. Provide the Services to the Customer as set out in this Addendum.
14.2. Install Software onto the Customer’s agreed nominated servers and desktops to meet the reasonable operational requirements of the Services.
14.3. Integrate and configure the Equipment and Software including testing to demonstrate to a nominated Customer representative that Dynamic is capable of providing the backup service to the Customer.
14.4. Remotely monitor the solution using automated processes.
14.5. Undertake regular health checksof all backup servers and related components from time to time.
14.6. Provide the opportunity for quarterly telephone meetings with a nominated Customer representative to discuss the performance of the Service against the Target Service Levels.
15. Customer Responsibilities
The Customer shall, unless otherwise covered under the Dynamic support Agreement:
15.1. Account Administration
15.1.1. keep account details and any associated passwords secure and confidential at all times;
15.1.2 acknowledge that anyone accessing the Customer’s account or Services using the Customer’s password is assumed by Dynamic to be doing so with the Customer’s authority; and
15.1.3. be responsible for the administration for user accounts and services.
15.2.1. be solely responsible for determining whether the security is sufficient for their purposes and for implementing any other security measures deemed appropriate. Dynamic only provide security that is expressly advertised as part of the Service.
15.2.2 be responsible for implementing reasonable security and environmental precautions to ensure a high level of system availability and data protection and recovery
15.2.3 responsible for securing Passwords and Encryption Key for the Service
15.3. No Ownership
15.3.1 acknowledge that Dynamic will provide the Customer with the Services and they obtain no ownership of or interest in:
15.3.1. Dynamic’s or its licensors physical or virtual hardware;
15.3.2 software installed by Dynamic on their physical or virtual hardware (unless supplied by the Customer or purchased on the Customer’s behalf by Dynamic), including and not limited to Operating System (“OS”); or
15.3.3. any Dynamic (or their licensors) virtual computer, server or data storage accessed by the Customer as part of the Service.
15.4 No third-party beneficiaries
15.4.1. accept that there are no third-party beneficiaries to this Addendums and indemnifies Dynamic against a claim by a person or Customer that they are a third-party beneficiary.
15.5. Provision of Service
15.5.1. acknowledge that Dynamic will solely determine how to operate their systems and provide the Services, including which software and systems are used, and may subcontract or outsource any function as they see fit in its absolute discretion.
15.5.2 inform Dynamic of any servers and/or desktops that no longer require the backup service, any new servers and/or desktops or any increase in Data exceeding 30% of current month Backup Data to be submitted for backup
15.6. Intellectual Property (“IP”)
in relation to any IP the Customer creates, modifies, stores, copies or transmits using the Services:
15.6.1 warrant to Dynamic that they have all necessary legal right and authority to so create, modify, store, copy or transmit the IP. The Customer shall transfer [OR] licence such IP to Dynamic to the extent necessary for Dynamic to carry on the Service;
15.6.2 indemnify on a full indemnity basis Dynamic against any breach of the above warranty and against any claim by a third party for any breach of the above warranty or any third party’s intellectual property rights;
15.6.3 acknowledge that if a third party claims that (or Dynamic has reason to believe that) there may be a breach of the warranty, Dynamic are not obliged to provide the Service until the issue is resolved to its reasonable satisfaction;
15.6.4 acknowledge that notwithstanding any other provision in the General Terms and Conditions or this Addendum, no intellectual property ownership rights transfer from Customer to Dynamic, or Dynamic to Customer, as a result of this Addendum or the Services.
15.7. Communications Links
15.7.1 provide dedicated communication links between Dynamic’s site and the Customer’s network as required to use the Service.
15.7.2 provide VPN access between the Customer’s site/s and the Service under this Service Schedule. Delay or failure to setup suitable access could affect Dynamic’s ability to provide the Service and should suitable access not be provided and completed after 2 months from the Commencement Date, Dynamic are entitled to bill the Customer for the full Service.
15.7.3 perform and/or arrange all firewall configuration changes needed on the Customer’s end to establish connectivity between Dynamic and the Customer’s sites at its own expense.
15.7.4 responsible for all Internet, communication and other costs associated with the use of the Services.
15.8.1 install the required operating system, database or application patches on servers and desktops identified by Dynamic as necessary to meet the operational requirements of the Service;
15.8.2 if required and agreed by both Parties, provide a secure, monitored and protected rack space/data centre space to install onsite Equipment at the nominated Sites and provide necessary data communications network links for the Services to be provided;
15.8.3 alert Dynamic to potential issues that may affect the performance of the Services including non-availability of servers or desktops, environmental failures in their data centre, network or internet connectivity, or external security threats that may be caused, but not limited to, virus or persistent system intrusion events; o provide access to the Customer’s Sites (by prior arrangement) as required to provide the Service including desk, computer, telephony, stationary and any other equipment reasonably required to meet the requirements of the assignment;
15.8.4. acknowledge that Dynamic’s ability to provide support may be severely affected if an appointed Customer contact lacks the necessary technical and product knowledge to assist with the timely resolution of a fault. Accordingly, Dynamic shall have no liability to the Customer in this regard.
15.8.5 provide Dynamic with a list of personnel (including contact details), who are authorised to engage with Dynamic support on behalf of the Customer, this list being updated from time to time by the Customer and communicated to Dynamic
15.8.6 provide a dedicated point of contact for major incident escalation and 24/7 out of hours contact/s, as frequently communicated to Dynamic and updated.
15.8.7 provide details and reasonable documentation of any security policies and change management procedures that the Customer wishes Dynamic to adhere to.
15.8.8 notify Dynamic of any Customer planned changes, downtime and maintenance windows, and include Dynamic in CAB and ECAB meetings where Services are likely to be affected, especially where the Services involve management of the Customer’s systems.
15.8.9 be responsible for patching, hot fix and vulnerability application within their environment;
15.8.10 respond to and resolve escalations relating to issues not covered by Dynamic under this Service Schedule.
15.8.11 be responsible for arranging any Third-Party Support and Maintenance contracts for applications and hardware referred to within the Agreement and relevant to the Service, for the duration of the Service Schedule, where not being provided by Dynamic.
15.8.12 be responsible for the support of applications and hardware, including that of Third Parties, not referenced in the Agreement.
15.8.13 be responsible for the Customer’s environment outside of the Service provided by Dynamic o provide up to date Customer contact information and ensure that Dynamic is informed of any such changes
16. Backup Data Security
16.1 Dynamic shall establish and maintain such security measures and procedures as are reasonable to provide for the safe custody of the System, the Software and the Backup Data and to seek to reasonably prevent unauthorised access to or use thereof.
16.2 Security copies and reconstruction of the System:
16.2.1 Where requested Dynamic, shall secure copies of Backup Data as required in the Backup Schedules and shall keep such Backup Data copies until Customer requests in writing for the Backup Data to be destroyed or returned;
16.2.2 In the event of any breakdown of or fault in the System with consequential loss or spoiling of the Backup Data or any part thereof, Dynamic shall provide such Backup Data copies as to the Customer to enable the Customer to reconstitute the Backup Data.
16.3 Loss of the Backup Data:
If the Backup Data or any part thereof shall be lost, destroyed or damaged whilst in Dynamic's possession prior to inputting, then Dynamic shall notify the Customer who shall, if available, promptly provide Dynamic with copies of the Backup Data or other records held by the Customer, whereupon Dynamic shall use such copy to resubmit for Backup Data generation.
17. Data Protection
17.1 Personal Data provided by the Customer shall, unless otherwise agreed in writing by both Parties, be processed in accordance with Dynamic’s Data Processing Policy, and the relevant Agreement, including this Service Schedule.
17.2 Customer acknowledges that information processed in the course of performing the Services may contain personally identifiable information of individuals and associated metadata and that the processing of such information may therefore involve the processing of personal data. With respect to any and all data, including, but not limited to, third party data, personally identifiable information and associated metadata obtained by Dynamic or its subcontractors pursuant to Customer’s use of the Services, Customer shall take all necessary measures to ensure that it, and all its employees, are aware that their personal data may be processed as part of the Services and that they have given their consent to such processing as well as complied with their responsibilities as data controller or data subjects, as applicable, in accordance with applicable Data Protection Laws.
17.3 Customer understands and agrees that Dynamic and its subcontractors have no control or influence over the content of the Backup Data processed by Service, which they perform on behalf of Customer.
18. Limitation of Liability
18.1 In variance to clause 14 (Limitation of Liability) of the General Terms and Conditions, each of the Parties total aggregate liability under or in relation to this Service Schedule (howsoever arising shall be limited to the total Charges received by Dynamic from the Customer under the Agreement and relevant Order in the 12 month period preceding the written notice of the claim by the Customer.
18.2 Except as set out in this Addendum, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this Addendum.
18.3 This clause 18 shall survive termination of this Service Schedule.
19. Audits and Record Keeping
19.1 From time to time the Customer (including its third party
representatives) at its own cost, will have the right, and Dynamic will provide the Customer or its agents with reasonable access, (subject to not less than five (5) working days prior written notice to Dynamic indicating the scope of the proposed audit) to perform audits and inspections of Dynamic and/or its subcontractors or other representatives to:
19.1.1 verify the integrity of the Customer’s Backup Data and to examine the systems, processes and procedures that process, store, support and transmit that data, and the processes that impact on the integrity of such data including Dynamic’s controls and security practices and procedures;
19.1.2 examine Dynamic’s performance of the Services and compliance with its obligations under this Agreement including verifying compliance with the Service Levels; and
19.1.3 Carry out any other audit activity to the extent required pursuant to any applicable law, regulation or industry code.
19.2 The Customer shall use all reasonable endeavours to ensure that its audit representative(s) perform any audit or inspection of Dynamic and/or its subcontractors and/or its representatives in a reasonable manner so as not to have a material adverse effect on the performance of the Services and Dynamic’s business.
20. Intellectual Property Rights
Not forgoing clause 7 (Third Party Licences), clause 20.1.4 (Intellectual Property Rights), clause 22 (Ownership; No Implied Licences), and clause 24 (Nature of the Agreement) of the General Terms and Conditions:
20.1 The Customer acknowledges and agrees that Dynamic owns or is licensed by a third-party proprietor to use all Intellectual Property Rights in:
20.1.1 the Programs;
20.1.2 the Software;
20.1.2 the Systems;
20.1.3 the Services Materials; and
20.1.4 Subject to Clause 19.4, all materials connected with the Services and in any material developed or produced in connection with this Agreement by Dynamic, its officers, employees, subcontractors or agents. And except as expressly stated in this Clause 20, this Addendum does not grant the Customer any rights to any such Intellectual Property Rights.
20.2 Dynamic herby grants to the Customer a non-exclusive, revocable, royalty-free licence for the term of this Addendum to use the Intellectual Property Rights referred to in Clause 19.1 to the extent required for the Customer to receive the Service.
20.3 For any computer programs or equipment not owned by Dynamic but nonetheless supplied for use as part of the Software or System, but including (without limitation) programs or equipment comprised in the Software or System, Dynamic warrants that it owns or possesses (or at the time of performance will own or possess) all necessary licences or rights required of Dynamic in performing its obligations under this Agreement and that such licences and rights include all enhancements, improvements, or upgrades to such programs or equipment.
20.4 The Customer owns and shall at all times continue to own all Intellectual Property Rights in
20.4.1 the Backup Data (and all copies of such Backup Data); and
20.4.2 information generated from the Backup Data. And the Customer hereby grants to Dynamic a licence to use the same for the purpose of providing the Services.
20.5 Notwithstanding the above, insofar as these do not comprise/contain any Backup Data or Confidential Information of the Customer, Dynamic reserves the right to use in any way it sees fit any skills and techniques acquired or used by it in the performance of the Service(s).
20.6 The Customer acknowledges that, in respect of any third-party Intellectual Property Rights, the Customer's use of any such Intellectual Property Rights is conditional upon Dynamic obtaining a written licence from the relevant licensor on such terms as will entitle Dynamic to license such rights to the Customer.
21. Excess Fees:
21.1 Where the Customer’s Backup Data exceeds the volume agreed in an applicable Order, Dynamic shall be entitled to invoice the Customer for the additional volume.
ADDENDUM 7: Hosted Services
The terms of this Addendum shall apply to any Hosted Services provided by Dynamic under this Agreement in addition to the General Terms and Conditions (in so far as those are applicable to the provision of Hosted Services). Where there is a conflict between the General Terms and Conditions and this Addendum, the terms in this Addendum shall prevail. Clauses referred to in this Addendum refer to Clauses within this Addendum unless otherwise stated.
1.1 The additional definitions set out in clause 7 shall apply in this Hosting Services Supplemental addendum. Any defined terms in the General Terms and Conditions or the Agreement will have the same meaning in this Hosting Services Addendum unless stated otherwise.
2. Hosting Services
2.1 In consideration of the Customer’s obligations to Dynamic and subject to the terms of the Agreement, Dynamic agrees from the Commencement Date to:
2.1.1 unless otherwise agreed by Dynamic in writing (including where Dynamic agrees to perform Additional Services which may modify or supplement any of the following):
(a) install, connect and maintain the power supply to the Equipment at the Location;
(b) supply racking and cabling for the Equipment in the Location in the quantities and at the price specified in the Order;
(c) provide internet connectivity through an internet service provider which provides an internet connection at the Building and shall provide the Basic Connectivity Service. The Customer shall, and shall ensure that users of the Equipment shall, make their own arrangements for internet access in order to access the Equipment.
d) provide the Basic Back-Up Service; and
2.1.2 provide the Additional Services (if any).
2.2 Dynamic shall provide Hosting Services and the Additional Services (if any), with reasonable care and skill. The Building shall be equipped with access security, climate control, fire suppression, and managed power supply with UPS and generator back-up.
2.3 Dynamic shall not be responsible for providing, or liable in respect of, any Out-of-Scope Activities.
2.4 Dynamic is not obliged to perform any Excluded Services. Where Dynamic performs any Excluded Services, Dynamic shall charge, and the Customer shall pay, the relevant Out of Scope Fees in respect of that work.
3. Customer’s obligations
3.1 The Customer agrees with Dynamic :
3.1.1 that, subject to the Agreement Terms, the Customer shall be entitled to install Equipment at the Location;
3.1.2 to ensure that all the Equipment is clearly labelled as belonging to the Customer;
3.1.3 to maintain the Equipment to a standard which ensures that at all times the Equipment is safe and complies with all applicable health and safety standards and all statutory or other legal requirements;
3.1.4 to comply with Dynamic’s health and safety instructions issued from time to time including, in particular, those relating to:
(a) the condition of the Location, including those instructions relating to the disposal of rubbish and hazardous material. The Customer is to ensure that the Location is kept safe and tidy at all times. To the extent the Customer fails to comply with the obligations set out in this clause 3.1.4(a), Dynamic may by notice in writing (specifying the matter to be rectified) require the Customer to remedy the same within seven (7) days of the date of such notice. In the event that Dynamic considers the condition of the Location to be unsafe for Dynamic’s’ Personnel (or the Personnel of other customers) it may suspend provision of the Hosting Services and/or the Additional Services (if any) until its instructions have been fully complied with by the Customer. In the event that the Customer has not complied with a notice given by Dynamic pursuant to this clause 3.1.4(a), Dynamic may itself, without prejudice to its other rights or remedies, remedy the condition of the Location including, but not limited to, the removal or disposal of any unsafe materials or rubbish at the Customer’s expense; and
(b) any installation and/or cabling works. To the extent that the Customer and/or its Personnel are found to be engaging in works which Dynamic considers to be being conducted in an unsafe manner or creating an unsafe environment, Dynamic may immediately require the Customer to stop such works until such works or environment are made safe;
3.1.5 not to replace or move the Equipment or to make any modification, alteration or addition to the same which results in material changes to the floor loading, heat output, power consumption and environmental conditions of the Equipment and the Location;
3.1.6 not to make or permit any person other than Dynamic (or persons approved by Dynamic ) to make any connection or disconnection of the Equipment or any part of the power supply within the Building. For the avoidance of doubt, the Customer shall not permit any person other than Dynamic (or persons approved by Dynamic ) to connect or disconnect the Equipment to any other power supply other than the Sockets;
3.1.7 not to install Equipment which occupies more than the space available in the Location;
3.1.8 unless otherwise agreed in writing with Dynamic, to install the Equipment in the Location at its own expense in accordance with an installation plan and timetable agreed with Dynamic ;
3.1.9 not to cause any injury or damage to, and in the case of Equipment, interference with, any person or property including (without limitation) the Building and any equipment owned by Dynamic or third parties which may from time to time be located in the Building;
3.1.10 that if any interference occurs between the Equipment and the equipment of a third party, the same shall be resolved by Dynamic in such manner as Dynamic directs and in accordance with which the Customer shall comply. Should, following an investigation carried out by Dynamic it be established that the interference is caused by the Equipment, the Customer shall be responsible for the cost of Dynamic’s investigation and the cost of repairing or replacing any damaged equipment belonging to the Customer himself or any third party and shall pay such sums on demand to Dynamic or such third party as Dynamic may specify;
3.1.11 to inform Dynamic immediately if any of its Equipment is subject to interference or is malfunctioning;
3.1.12 to provide at no charge training for Dynamic and its Personnel to the extent agreed with Dynamic from time to time to enable Dynamic to perform its obligations under the Agreement;
3.1.13 to provide Dynamic from time to time upon request with a list of its Personnel who are authorised to have access to the Equipment in the Building for the purposes of inspecting and maintaining the Equipment;
3.1.14 at the termination of the Agreement (or the relevant part of it) to remove the Equipment from the Building and on demand pay all reasonable costs and expenses incurred by or on behalf of Dynamic relating to the disconnection and removal of the Equipment;
3.1.15 to provide all necessary access to Equipment, information, facilities and authorisations necessary to enable Dynamic to fulfil its obligations under the Agreement and to provide such co-operation as Dynamic may reasonably require in connection with the provision of the Hosting Services and the Additional Services (if any);
3.1.16 where, as part of the use or operation of the Equipment, the Customer makes use of or possesses any data, documents, programs, equipment or other information and materials owned or supplied by a third party, to have and maintain at all times (at the Customer’s own expense) all necessary approvals and permissions including any consents and approvals necessary for Dynamic to provide the relevant services;
3.1.17 that it shall not use the Hosting Services and/or the Additional Services (if any):
(a) to store, distribute or transmit through the relevant services any Virus or any material that:
(i) is unlawful, harmful, threatening, defamatory, obscene, harassing or racially or ethnically offensive;
(ii) facilitates illegal activity;
(iii) depicts sexually explicit images; or
(iv) promotes unlawful violence, discrimination based on race, gender, age, disability, sexual orientation, religion, belief or gender reassignment, or any other illegal activity; or
(b) in a manner or for a purpose that constitutes a violation or infringement of the rights, or is harmful or detrimental to the reputation of Dynamic or any other person; or
(c) unless as otherwise agreed in writing, to provide the Hosting Services and/or the Additional Services (if any) directly or indirectly to third parties.
4. Dynamic’s Rights
4.1 Dynamic shall be entitled, without liability, to:
4.1.1 subject to giving not less than thirty days’ prior written notice to the Customer, move the Equipment to a different location within the Building (which shall then become the “Location” for the purposes of the Agreement). The costs and expenses incurred by Dynamic in moving and installing the Equipment shall be borne by Dynamic and the Customer accepts that its use of the Equipment may therefore be interrupted. Dynamic will use its reasonable endeavours to cause minimum disruption to the operation of the Equipment by endeavouring to make the relocation outside of Normal Working Hours; and
4.1.2 temporarily disconnect the power supply to the Equipment for the purpose of investigating and rectifying any reported problems or carrying out maintenance relating to the Equipment, the Location, the Building or other equipment in the Building or moving the Equipment to a different location pursuant to clause 4.1.1. Where reasonably practicable (emergencies excluded), Dynamic will give advance notice of such disconnection and use its reasonable endeavours to cause minimum disruption to the operation of the Equipment by endeavouring to make the disconnection outside of Normal Working Hours.
5. Access to Equipment
5.1 Subject to clause 5.2, Dynamic shall permit the Customer’s Personnel (including any Personnel of any third party telecommunications carrier or maintenance supplier) to access the Building and the Location for the purpose of assessing, inspecting, installing, moving, repairing and/or maintaining the Equipment provided that the Customer has given Dynamic as much written notice (including by email) as is reasonably practicable under the circumstances of the name of such person and the date and time when access is required.
5.2 Dynamic reserves the right (on reasonable grounds), without liability, to:
5.2.1 refuse any person entry to the Building; and
5.2.2 request any person leave the Building at any time.
5.3 Dynamic will not be responsible for the consequences of any refusal or delay by Dynamic to permit entry or of any request by Dynamic for a person to leave the Building where such decision has been made on reasonable grounds.
6. Additional space
6.1 Should the Customer require additional space for any equipment, the Customer may request permission to install additional equipment in the Building and shall give written notice of such request to Dynamic and shall give notice to Dynamic of the power and other technical requirements for such additional equipment.
6.2 Dynamic shall consider any such request and if agreement is reached (included in respect of associated Charges), Dynamic shall designate a further part of the Building for additional equipment and the relevant provisions of the Agreement shall be amended accordingly and the provisions of the Agreement shall apply equally to such further part.
7. Definitions and interpretation
7.1 In this Hosting Services Addendum, the following additional definitions apply:
Additional Services: means the services (if any) in addition to the Basic Services which Dynamic agrees to provide to the Customer and which are set out in the Specification, or otherwise agreed in writing by the parties.
Additional Services Fees: means the fees payable by the Customer in consideration for the provision of any Additional Services which shall be calculated by reference to the relevant information set out in the Proposal or as otherwise notified to the Customer by Dynamic in writing.
Basic Back-Up Service: means the back-up service to be provided by Dynamic as part of the Hosting Services which (unless otherwise agreed in writing) shall constitute a daily back-up (not image based) of the Customer data to be undertaken outside of Normal Business Hours with backed up data being retained for one calendar month.
Basic Connectivity Service: means the service to be provided by Dynamic (unless agreed in writing otherwise between the parties) as part of the Hosting Services.
Building: means the building designated by Dynamic from time to time for the provision of the Hosting Services.
Burstable Bandwidth Connectivity Services: means the provision of an internet connection which is provided on a flexible (rather than dedicated) bandwidth basis, whereby several users (including the Customer and various third parties) will share bandwidth in the same connection in order to provide a more cost effective internet connection than would be achievable by providing a dedicated bandwidth link.
Hosting Services: means the services described in clause 2.1.1.
Contended: means that the relevant internet connection will be shared by various users (including the Customer and various third parties), each of whom will be competing to utilise bandwidth from the same shared internet connection.
Enhanced Back-up Service: means the service (if any) to be provided by Dynamic as part of the Additional Services which shall supply Burstable Bandwidth Connectivity Services on an Uncontended basis as further described in the Specification.
Enhanced Connectivity Service: means the service (if any) to be provided by Dynamic as part of the Additional Services which shall supply Burstable Bandwidth Connectivity Services on an Uncontended basis as further described in the Specification.
Equipment: means (unless otherwise agreed in writing between the parties) the Customer’s equipment installed by the Customer in the Location from time to time and excluding, for the avoidance of doubt, Dynamic’s property.
Excluded Services: means any services which Dynamic is not obliged to provide under the Agreement, including any services which are explicitly detailed as excluded from the Services in the Specification.
General Terms and Conditions means the General Terms and Conditions of Dynamic from time to time.
Location: means such part or parts of the Building specified in the Specification or as shall have otherwise been designated by Dynamic for the installation of the Equipment, as the same may be changed under clause 6.2.
Out-of-Scope Activities: means any activities specified in writing by Dynamic (including in the Specification) as being “out of scope”.
Sockets: the power sockets in the Location which are approved by Dynamic in writing for the Customer’s use.
Uncontended: means that bandwidth in the relevant internet connection will not be shared with any third parties.
Virus: means any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise(; or adversely affect the user experience, including worms, trojan horses, viruses and other similar things and devices.
ADDENDUM 8 : Projects
The terms of this Addendum shall apply to any Projects implemented by Dynamic under this Agreement in addition to the General Terms and Conditions (in so far as those are applicable to the implementation of Projects). Where there is a conflict between the General Terms and Conditions and this Addendum, the terms in this Addendum shall prevail. Clauses referred to in this Addendum refer to Clauses within this Addendum unless otherwise stated.
The Following definitions are applicable to this Addendum in respect of Projects:
Acceptable Use Policy: Means Dynamic’s Acceptable Use Policy as issued from time to time.
Acceptance Tests: The activities carried out by Dynamic in accordance with Dynamic's standard procedures to demonstrate the correct commissioning and functionality of the Works defined in the Specification.
Applications: Any Software used to provide access to facilities for users on the Workstations.
Authorised Signatory: The person who has sufficient authority to sign on behalf of the Customer for the Works. It is assumed that an Employee of the Customer is an Authorised Signatory unless Dynamic is advised otherwise.
Cabling Infrastructure: Any structured cabling and associated components connecting Workstations to the Servers.
Customer: The person or organisation whose name is set out in the Specification, to include Scope of Works, Road Map or Quotation.
Hardware: Any electronic equipment required such as Servers, Workstations, switches, printers, scanners, etc.
Installation Engineer: The Dynamic installation engineer(s) who will carry out the Works identified in the Specification.
Network: Means any network in relation to which Dynamic provides the Works.
Server: Any central computer system used for the storage or user data and/or Applications.
Software: Any computer disk or device with data on it and which is used to configure Servers, Workstations or Hardware or the source of Applications.
Virus: Means any virus, worm, Trojan horse, logic bomb, time bomb, back door, trap door or any other similar form of code intended, or having that effect, to cause harm, damage or to prevent or restrict the use of any computer system or data.
Workstation: Any PC system used for individual access to user data and/or Applications, often referred to as a desktop Workstation.
3.1 All Hardware, Software and cabling infrastructure components associated with this order must have been ordered and delivered from either Dynamic, or a Third Party Supplier, in time for the commencement of the Works and pursuant to the Specification.
3.2 The Customer shall be responsible for the arrangement and/or completion of any Third Party Services required prior to commencement of the Works.
4. Dynamic Personnel
4.1 The Dynamic appointed Installation Engineer, project co-ordinator, or project manager, will be responsible for co-ordinating all activities relating to the Works to be carried out by Dynamic.
4.2 The Installation Engineer will be responsible for carrying out the Works defined within the Specification, unless otherwise stated.
4.3 The Installation Engineer may decide to involve other Dynamic personnel and/or Third Party to assist with the Works defined in the Specification.
4.4 The Installation Engineer may carry out the Works at the Customers site or from a remote location including Dynamic’s office, at Dynamic’s sole discretion.
4.5. The Customer hereby accepts and acknowledges that the Installation Engineer may change throughout the course of the Works, at Dynamic’s sole discretion, by Dynamic giving the Customer notice of such intended change.
5. Commencement of Works
5.1 The commencement of the Works will only take place when the Agreement, signed by an Authorised Signatory of the Customer, has been received by Dynamic and an Order for the Works defined in the Specification has been received.
5.2 The date for the commencement of Works will be agreed between Dynamic and the Customer.
5.3 If an amendment is made to an order and this necessitates a change to the Specification then the Works will only take place when the revised Specification, signed by an Authorised Signatory of the Customer, has been received by Dynamic and the amended order for the Works defined in the Specification has been received.
IMPORTANT - PLEASE NOTE - CANCELLATION CHARGE
5.4 If the Customer cancels any Works (or re-schedules and subsequently cancels any Works) then the Customer may be charged a cancellation charge of 75% of the total price of the Works if notice of cancellation is given less than seven (7) calendar days before the scheduled commencement date of the Works set out in the Specification. The Customer agrees that such charge amounts to a genuine pre-estimate of the losses suffered by Dynamic on such cancellation.
5.5. If the Customer re-schedules the Works, Dynamic may issue and invoice to the Customer for any costs incurred and any reasonable costs associated with the Works so far, including but not limited to any up-front material and/or Software costs.
6. Acceptance Testing
6.1 The Installation Engineer will undertake a series of basic Acceptance Tests to demonstrate to the Customer that the Works defined in the Specification have been successfully completed.
7.1 The duration of the on- or off-site installation will be provided to the Customer by the Dynamic engineer or project coordinator. Any timescales for completion of the Works given are provided as an estimate only; the time required on- or off- site may vary. Any changes to the estimated time Dynamic require on- or off- site to complete the Works will be notified to the Customer as soon as possible.
7.2 For the avoidance of doubt, if Dynamic complete the Works before the estimated date, Dynamic will not be obliged to remain on the Customer’s site or carry out further works and the fees as set out in the order will not reduce.
8. Customer Responsibilities
8.1 The Customer is solely responsible for and must:
8.1.1 Unpack and position all Hardware equipment inits final location, to the satisfaction of Dynamic, prior to the commencement of the Works.
8.1.2 Ensure that the users of any existing systems that are being upgraded, or extended, are informed that the systems will be unavailable during the period over which the Works are being carried out.
8.1.3 Ensure that any existing Cabling Infrastructure is functioning correctly. Dynamic reserves the right to run any tests it deems appropriate on the Cabling Infrastructure before commencing the Works. Should Dynamic require alterations to be made to the Cabling Infrastructure, it shall inform the Customer of the requirements in order for Dynamic to implement the Works. Should the Customer not, within twenty-eight (28) days, make such alterations, then Dynamic has the right to cancel this agreement without any liability to the Customer and the Customer shall remain liable for any Charges incurred by Dynamic prior to cancellation under this Clause.
8.1.4 Ensure that any copies of Software required for the configuration of any Hardware, not supplied as part of the order, are available prior to the commencement of the Works.
8.1.5 Ensure that any copies of Software required for the configuration of Software Applications, not supplied as part of the order, are available prior to the commencement of the Works.
8.1.6 Ensure that full, verified backups of any existing network Servers are made prior to the commencement of the Works. In the event of unforeseen difficulties, the Installation Engineer may have to use such backups to restore Servers to their previous state. The Customer is therefore responsible for any loss of data due to failure, or incompleteness, of any backup media provided.
8.1.7 Provide the Installation Engineer with a network administrator user's logon identity and password for all existing Servers to be accessed.
8.1.8 Provide the Installation Engineer with at least one ordinary (i.e. user access which must not have network administrator or supervisor access privileges) network user's logon identity and password for all existing Servers to be accessed.
8.1.9 Ensure that the Installation Engineer is granted full and exclusive access to all parts of the network as reasonably required. Any Works to be undertaken outside of these hours will be agreed with the Customer, who will not unreasonably withhold their consent.
8.1.10 Ensure that the Customer's network support staff may be easily contacted during the period over which the Works are being carried out.
8.1.11 Ensure that the Installation Engineer is informed of any operational difficulties with either any existing network or building infrastructure prior to the commencement of the Works.
8.1.12 Backup and maintaining the final system configuration once the Works have been completed and the Customer will have responsibility for these (unless otherwise stated in the Specification) post completion of the Works.
8.2 The provision of the Works by Dynamic is subject to the Customer performing or complying with all of its responsibilities set out in these Conditions. For the avoidance of doubt, Dynamic may without notice suspend or terminate the Works in the event that:
8.2.1. any of the Customer’s responsibilities as set out in these Conditions is not performed; or
8.2.2. any Virus is transmitted onto any of Dynamic’s systems.
8.3 The Customer must ensure that the Network is protected against the threat of Virus infection by installing and maintaining up to date anti-virus software, save where provided by Dynamic as part of the Agreement.
8.4 The Customer must keep the Network current and secure by applying all appropriate Dynamic validated service releases and Software updates, where Dynamic are obliged to provide the same as part of the Agreement.
8.5 Where Dynamic are instructed to provide support pursuant to the Agreement, the Customer must, at all times, implement and enforce an Acceptable Use Policy for the Network. The Customer shall be responsible for ensuring that all users of the Network comply with the Acceptable Use Policy. Further, where there is a breach of the Acceptable Use Policy, the Customer shall take such steps as are appropriate in all the circumstances (which may, for the avoidance of doubt, include disciplinary action and/or ceasing to permit further use of the Network by the relevant individual(s)).
8.6 The Customer shall be responsible for procuring all required internet connections and, for the avoidance of doubt, all internet costs shall be entirely the responsibility of the Customer.
8.7 The Customer must have in force current software licenses for all software on the Network. If the Customer instructs Dynamic to install any Software, it is the Customer’s responsibility to check and agree to the terms of the licence agreements before installation. The Customer authorises the Installation Engineer to accept any licence agreements necessary to complete the Works on the Customer’s behalf.
8.8 The Customer must maintain the configuration, Hardware and cabling relating to the Network(s) in good working order and within any specifications provided by Dynamic (if any).
8.9 The Customer must maintain securely, good quality current backup copies of all Network Software and data on the Customer’s premises. The Customer must provide access to current backup copies to Dynamic (and Dynamic authorised third party) personnel connected with the provision of the Works where required.
8.10 The Customer must permit Dynamic (and Dynamic authorised Third Party) personnel connected with the provision of the Works access to the Customer’s premises to work on the Network where reasonably required.
8.11 Where required to provide any of the Works, the Customer shall ensure the provision of an installed data link through which Dynamic can access the Network using Dynamic’s chosen remote access software and technology. The Customer must also provide access to those areas of the Network as required by Dynamic for Dynamic to deliver the Works.
8.12 Following the completion of the Works the Customer must endeavour to functionally check all Hardware and Software installed or configured under the Specification. Should there be any incomplete Works for Dynamic to complete this will be detailed on Dynamic’s handover note and arrangements made between the parties to complete them.
8.13 Functional checks should be carried out by the Customer during the first five (5) days following completion of the Works and successful Acceptance Tests i.e. with normal numbers of users logged on and accessing the Hardware and Software in typical modes of use.
8.14 Where the Works have been completed during out of term periods, such as school holidays, functionality checking would normally be carried out at the start of the next term. However, Dynamic will not be held responsible for any damage to any equipment or the Network including but not limited to flood, fire, physical trauma, customer-implemented & unsupported configuration changes which have negative impact on the results of the functionality checking.
8.15 Incidents, where Hardware or Software fails during the functional checking, should be reported directly to Dynamic by email to email@example.com. Customers should expect to carry out reasonable levels of diagnostics and assistance to Dynamic engineers in rectifying any reported failures.
8.16 Issues of a non-technical nature arising from the Works, or enquiries regarding outstanding tasks, should be reported to the Dynamic engineer or project co-ordinator.
9.1 Dynamic will only install the Hardware and Software upgrades detailed in the Specification.
9.2 Any other dependent Hardware or Software upgrades must be installed by the Customer before commencement of the Works. If the Customer fails to install appropriate Hardware or Software, Dynamic reserve the right to delay the dates agreed with the engineer or project coordinator for provision of the Services. If the Customer fails to install the appropriate Hardware or Software within thirty (30) days, Dynamic have the right to terminate the order without notice. In such an event, the Customer will be responsible for any costs incurred by Dynamic up to the date of cancellation.
9.3 Dynamic will use reasonable endeavours to install Customer supplied Software drivers for any supplied Hardware items. Dynamic will not be responsible for obtaining the Software drivers or determining their correct function for the Hardware.
9.4 The minimum specification for Workstations should be determined in relation to the Software Applications required to be installed on the Workstation.
9.5 Dynamic cannot be held responsible for the performance of a Workstation if the Hardware specification does not meet the requirements necessary to run a particular Application and will not undertake tasks to configure Workstations that do not meet the required specification.
10.1 Following completion of the Works the Customer will be issued with a copy of the Dynamic Installations Customer Handover and Sign-Off documentation which will be made available from the Dynamic Installation Engineer. A full report detailing the exact configuration and set-up will only be issued if this has been agreed as part of the Specification.
11.1 Dynamic operate under and are formally accredited to Microsoft Partner status.
12. Non-Functional Systems
12.1 Dynamic will not be held responsible where a system cannot be made to function correctly for reasons beyond Dynamic’s reasonable control, e.g. Virus infection, misuse or abuse, force majeure, faulty or incompatible Hardware (unless supplied as part of this integration work) or corrupt or incompatible Software supplied by the Customer.
13. Software Application Installation
13.1 Dynamic will use reasonable endeavours to ensure that any Third Party Software supplied for inclusion on systems is installed in accordance with the requirements of the Customer. Where this is not possible due to limitations of the Hardware and/or Software the Customer will be informed at the earliest possible opportunity.
13.2 Where existing Software Applications are migrated from existing systems the Applications will be migrated on an "as exists" basis and any issues with the existing Software will not be investigated or rectified by Dynamic.
13.3 It is the responsibility of the Customer to ensure that a Customer representative, with sufficient knowledge of the Software Applications, is available to ensure the application is fully tested following the installation.
13.4 The Customer acknowledges that Dynamic is not responsible for supporting any Software, including any Dynamic Software provided under the Works, unless there is a relevant Dynamic support agreement in place.
13.5. Where Dynamic provides Third Party Software as part of the Agreement, Dynamic will not be responsible for any failure by the Third Party to provide the software either in time for the agreed commencement date or at all and the Customer acknowledges and accepts that in such instance Dynamic may need to source alternative Software at an increased price (which will be the Customer’s responsibility). Any delay’s as a result of a Third Party failure will not give rise to a cause of action to the Customer under the Agreement.
14.1 Unless a written quotation has been given (whereupon the price quoted will be fixed for a period of thirty days or such other period as is specified therein) the price for the Works is subject to alteration without notice and the price charged to the Customer will be that applicable at the date of Dynamic’s acceptance of the order or (at Dynamic’s option) the start date of the Works. All prices are exclusive of Value Added Tax (and any similar tax) which will be added as separate items on Dynamic’s invoice.
14.2 Unless otherwise notified to the Customer in writing by Dynamic, the Customer shall pay all invoices within thirty days of the date thereof (time being of the essence).
14.3 Dynamic reserves the right to charge interest pursuant to Clause 11.8 of the General Terms and Conditions and to recover its expenses including legal fees and costs of collection and to suspend delivery, performance of any warranty, or license, or (at Dynamic’s option) forthwith to determine the same.
14.3 All payments will be made without set off or counterclaim or any other withholding whatsoever.
15.1 Risk of loss or damage to any Hardware or Software shall pass from Dynamic to the Customer on Delivery of any such goods to the Customer's premises or successful installation of any Software onto the Network. The Customer agrees to insure such goods on delivery.
16.1 Save in the case of negligence by Dynamic causing death or personal injury (for which Dynamic’s liability shall be unlimited), Dynamic shall only be liable to the Customer for any direct physical loss caused by the failure by Dynamic to perform its obligations hereunder up to a maximum of the total payments made by the Customer to Dynamic under the Agreement.
16.2 Dynamic shall not be liable for any indirect, special or consequential loss howsoever arising (including but not limited to loss of anticipated savings or data).
17.1 Either party shall have the right to terminate this agreement by thirty days written notice to the other if:
17.1.1. the other party is in material breach of the agreement (and in the case of a breach capable of remedy, has not remedied the breach within thirty calendar days of written notice of such breach); or
17.1.2. the other party becomes subject to an Insolvency Event. Failure by either party to exercise its rights hereunder shall not be deemed to be a waiver of those rights.
18. Data Protection
18.1 In these terms, the terms data controller, data processor, personal data, sensitive personal data and processing shall be as defined in the European Data Protection Directive 95/46/EC and “Data” shall mean the personal data and sensitive personal data provided to Dynamic in connection with the Service. “Data Protection Law” means applicable data protection legislation implementing the European Data Protection Directive 95/46/EC and any amendments, revisions, re-enactments or consolidations thereof.
18.2 The Customer acknowledges that it is a data controller and that Dynamic is a data processor.
18.3 Dynamic shall (a) use the Data only on the Customer’s instructions as set out or referred to in these terms to perform its obligations
18.3.2. provide appropriate technical and organisational measures to protect the security of the Data (in particular against unauthorised or unlawful access or processing, alteration, accidental loss or destruction of or damage to the Data) and
18.3.1. take all reasonable steps to ensure the reliability of any of its staff who have access to Data.
18.4 The parties acknowledge that Dynamic may transfer Data to Dynamic’s sub-contractors (including Dynamic group entities) (“Recipients”) outside the European Economic Area in countries which have not been approved by the European Commission as having adequate protections in place for the purpose of the transfer of personnel data. Dynamic will be permitted to transfer Data to such Recipients provided that Dynamic shall have entered into an agreement with the relevant Recipient based upon standard contractual clauses approved by the European Commission for transfers of personal data to processors outside of the European Economic Area and which agreement shall include security obligations on the Recipient which are no less onerous than those contained in these terms.
18.5 The parties also acknowledge that Dynamic may also use services and/or products from other third parties and that, in doing so, Dynamic may transfer Data to such third parties. This may include (by way of example only) third parties that provide online storage and other facilities. If Dynamic becomes aware of any such third party wishing to transfer Data outside the European Economic Area, Dynamic shall request that the third party enters into an agreement of the sort noted in clause 18.4 above.
18.6 The Customer agrees to comply with its obligations under Data Protection Law in relation to its collection, processing and provision of Data to Dynamic.
18.7 The Customer shall indemnify and keep Dynamic indemnified against all costs, claims, losses, damages and expenses (including legal expenses) arising out of, or in connection with, any breach of this Clause 18 by the Customer and/or its employees, agents and/or subcontractors.
18.8 The Customer acknowledges that Dynamic is reliant on the Customer for direction as to the extent to which Dynamic is entitled to use and process the Data. Consequently, Dynamic will not be liable for any claim brought by the Customer or any data subject arising from any action or omission by Dynamic to the extent that such action or omission resulted from the Customer’s instructions.
19.1 No alteration to this agreement shall be valid unless made in writing and signed by both parties.
19.2 Any notices required to be given under this agreement shall be in writing and shall be sent to the respective addresses of the parties as set out on the Agreement. Notices shall be served by post unless otherwise agreed and shall be deemed served two working days after posting.
19.3 In the event of any conflict between this document and the General Terms and Conditions, this agreement shall take precedence.
19.4 This agreement shall be governed by the laws of England and Wales.
ADDEDUM 9: Proactive Services
The terms of this Addendum shall apply to any Proactive and On-Site services by Dynamic under this Agreement in addition to the General Terms and Conditions (in so far as those are applicable to the Pro-Active and On-site services). Where there is a conflict between the General Terms and Conditions and this Addendum, the terms in this Addendum shall prevail. Clauses referred to in this Addendum refer to Clauses within this Addendum unless otherwise stated.
2. Definitions and interpretations
In this addendum the following definitions and interpretations will apply:
“Account” means the confidential file where the details of the customer are held.
“Agreement” means a contract for the provision of pro-active and on-site support services signed by Dynamic and the Customer.
SLA” means the Service Level Agreement that dictates the Response Times provided by Dynamic to the Customer for Incidents and the availability / regularity of services.
“System Audit” means an assessment of the customer system(s) by a Dynamic engineer in order to gain the necessary understanding of the System for Dynamic to be able to supply the required level of support.
“The Initial Term” means the period of 12 months from the commencement of the Support Contract.
“Subsequent period(s)” means the subsequent period (s) thereafter unless terminated by not less than ninety days written notice to expire at the end of the relevant year.
“Continuity” means the Agreement is deemed as renewed unless cancellation is received in writing with not less than 90 days notice prior to the annual renewal date.
“Supplier” means any supplier to Dynamic
“Third Party Software Supplier” means the company who has designed or developed the software
“Equipment” means the equipment stated in the Specification.
“Roaming Computers/ Users” means a workstation, mobile communication device or user that is not permanently located at the Customer’s site when the workstation or mobile communications device in question is owned by the Customer and is part of the Customer’s domain.
“Server Instance” means a network, email or other server, whether physical or virtual.
“System” means the network, software, Server Instances, or any other item being maintained under the Agreement as defined in the proactive schedule of the Agreement
“Software” refers to the Software Products set out in the Specification.
“Software” applies to all parts of software, to new releases, updates and modifications of the software.
“Support Hours” means 9:00am to 5:00pm Monday to Friday excluding public and national holidays.
“Our representative” means any employee, agent or subcontractor of Dynamic or other third party.
“Proactive Service” means any IT Proactive services as specified in the support schedule. The Proactive Service is proactive actions to maintain the System’s accepted operational status and as set out in the Agreement. The Customer is referred to Addendum 12 for a list of the proactive actions available. There will be times when Changes as opposed to maintenance are required to maintain the accepted operational status of the System. Such Changes, are excluded from the Proactive Services and are chargeable.
“Change(s)” mean a modification that is material or otherwise that alters the hardware or software configuration of the System defined in the Agreement.
“Remote support’ means any support given to you by Dynamic that is not given on site.
“On Site Support” means the provision of services by Dynamic at the Customer site(s) as detailed in the Specification.
“Customer Site” means the Site or Sites specified in the Specification at which the Customer operates the System defined in the Agreement.
“Support Contract” means the Agreement between Dynamic and the Customer for the provision of IT support.
3.1. Only Equipment, Hardware and Software included on the Schedule of Cover is included within the service contract, all other Equipment, Hardware and Software is specifically excluded.
3.2. Any works deemed as Support or Projects (see addendum 12) are specifically excluded from Proactive Services.
4 Scope of Cover
4.1. The scope of works covered by the proactive services agreement will be set out in the Specification and may include any or all of the following as agreed with the Customer:
4.1.1. Driver updates
4.1.2. Firmware updates
4.1.3. Operating system updates
4.1.4. Backup testing and tuning
4.1.5. Licence auditing
4.1.6. Security monitoring
4.1.7. Maintaining the IT asset register
4.1.8. Working with the Customer account manager to develop and maintain an IT roadmap
4.1.9. Maintaining the IT asset register
4.1.10. Onsite floor walks across the userbase (at an agreed frequency) to gather support issues.
4.1.11. Performance monitoring and tuning
4.1.12. Retiring old IT equipment for safe and secure disposal
4.1.13. Disaster recovery planning and testing
4.1.14. Site documentation
4.1.15. Liaison with the installations team to plan projects.
The above is indicative only and the Customer is referred to the Specification to ascertain what is included within the Agreement.
4.2 If the Customer has a Support Contract with Dynamic, then the Customer may, subject to an agreed Charge, also include Support Proactive Tasks within it’s agreement for Proactive Support. The scope of cover will be set out in the Specification but may include
4.2.1. Router, Firewall, VLAN configuration changes
4.2.2. New user setup
4.2.3. Mailbox management
4.2.4. User instruction
4.2.5. Managing ‘out of office’ email responder
4.2.6. File permission changes
4.2.7. User name changes
4.2.8. Dynamic approved Third Party Software installations
4.2.9. Third Party Software Patching, where such Third Party Software is included in the Support Contract
4.2.10. Windows updates to workstations only
4.2.11. Restoring files from onsite backup
4.2.12. Providing remote server access to pre-approved third parties
4.2.13. IT house keeping tasks.
4.2.14. Liaising with third parties in respect of hardware integrations.
The above is indicative only and the Customer is referred to the Specification to ascertain what is included within the Agreement.
5. Dynamic’s obligations
5.1. Dynamic shall provide the Services with all reasonable care and skill. Any times or dates agreed by Dynamic shall be estimates only and shall not be of the essence of this Agreement.
5.2. Dynamic will provide a suitably qualified engineer to carry out the Services.
6. The Customer’s obligation
6.1. The Customer shall:
6.1.1. Allow Dynamic such full, safe and uninterrupted access as Dynamic may require to provide the Services. The Customer hereby acknowledges that Dynamic shall have no liability to the Customer should it be prevented from providing the Services to the Customer due to the Customer’s breach of this clause 6.1.1.
6.1.2. Cooperate with Dynamic in performing the Services and provide any assistance or information as may reasonably be required by Dynamic.
6.1.3. The Customer shall indemnify Dynamic against any losses, damages, costs (including legal fees) and expenses incurred by or awarded against Dynamic as a result of the Customer’s breach of this Agreement, or any negligent or wrongful act of the Customer, its officers, employees, contactors of agents.
6.2. The Customer shall not:
6.2.1. For the duration of the Agreement attempt to repair or maintain or interfere with the Equipment, Software of Hardware, or suffer or allow any third party to do so other than with Dynamic’s prior written consent.
6.2.2. For the duration of the Agreement install add or otherwise change any Equipment, Software or Hardware attached to the System, or suffer or allow any third party to do so other than with Dynamic’s prior written consent,
6.2.3. Block, restrict or otherwise prevent Dynamic from gaining access to the System for the purpose of performing the Services, and
6.2.4. For the duration of this Agreement and for a period of 2 years following termination, directly or indirectly induce or attempt to induce any employee of Dynamic who has been engaged in the provision, receipt, review or management of the Services or otherwise in connection with this Agreement to leave the employment of Dynamic.
7. Commencement of Proactive Service
7.1. The Agreement will commence on the Commencement Date for an initial term of twelve months. The Agreement will renew for a further term of twelve months on the anniversary date unless terminated in accordance with Clause 12 of the General Terms and Conditions.
7.2. Upon commencement of the Proactive Service Agreement a System Audit will be performed, Dynamic may at its discretion require the system audit prior to commencement of the Proactive Service Agreement.
7.3. The Customer accepts responsibility for the status of their System prior to the involvement of Dynamic
7.4. Any deficiencies found during the System Audit will be noted in the report produced and can be corrected or improved by Dynamic. If Dynamic are instructed to correct or improve the deficiencies, these works will be carried out in accordance with Addendum 8 (Projects). For the avoidance of doubt, additional charges will apply.
7.5. The Customer is under no obligation to commission Dynamic to resolve issues discovered during the System Audit.
7.6. If the Customer does not wish to adopt recommendations for improving aspects of the System or resolve deficiencies highlighted or if there are omissions in the information provided by the Customer during the System Audit, Dynamic retain the right to charge additional fees or impose reasonable limits on the Proactive services provided for certain aspects of the System.
7.7. The fees for Dynamic’s Proactive Service will be calculated based upon the number of sites and workstations within the Customers IT System along with any other relevant factors or specific requirements the Customer may have. A quotation will be provided to the customer confirming the Proactive Service charges.
7.8. The Proactive Service Agreement will include the Specification. This will be a list of the component parts of the service and associated SLA’s.
8. Provision of Proactive Services
8.1. Working Hours
8.1.1. Dynamic will provide the Proactive Services during the Working Hours on a Working Day (excluding public holidays) unless expressly stated otherwise in the Agreement.
8.1.2. Dynamic’s standard working Hours for the provision of onsite Support services are 9:00am to 5:00pm Monday to Friday (excluding public holidays) unless expressly stated otherwise in the Agreement (Including 1 hour for lunch).
8.2. Out of Hours Periods.
8.2.1. Dynamic will not undertake remote Proactive Services Out of Hours, unless explicitly stated in the Agreement.
8.2.2. On Site Support will NOT be available during Out of Hours Periods unless explicitly stated in the Agreement.
8.3. Frequency and Duration
8.3.1. The Frequency of Proactive Services to be provided to the Customer is as set out in the Specification.
8.3.2. The Dynamic representative will remain on-site during the Working Hours on a Working Day. Any works outstanding will be completed at the next scheduled visit.
8.4. The Customer is responsible for giving Dynamic the authority to deal with 3rd party suppliers on behalf of the Customer. When such authority has not been provided, the Service that can be offered by Dynamic may be limited.
8.5. Planned maintenance (e.g. Server reboots) can be scheduled for Out of Hours Periods for an additional Charge.
8.6. Dynamic does not warrant or guarantee that the same Dynamic representative will be available to the Customer to provide the Proactive Service on each and every occasion.
8.7. Dynamic reserves the right to provide Proactive Services remotely, where it is able to do so.
8.8. Dynamic will use its reasonable endeavours to ensure that the Proactive Service causes minimal interruption to the Customer’s service. The Customer agrees and acknowledges that Dynamic cannot guarantee that there will be no disruption to the service during planned maintenance and holds Dynamic harmless in respect of such loss of service.
9. Changes to the Proactive Support Service
9.1. The Customer may request additions and changes to the Proactive Support Service throughout the Term. Upon receipt of a written request for a change, Dynamic will confirm to the Customer if it accepts the changes and reserves the right to vary the charges to reflect the change.
9.2. Any Changes performed by Dynamic to the System will be Supported under the Agreement, once any warranty periods have expired, and pending agreement being reached on revised fees for ongoing Support (if applicable).
9.3. If the Customer’s System grows in numbers of workstations or Server Instances over any given period, Dynamic retain the right to instigate a System review and increase the Charges pursuant to Clause 11.5 of the General Terms and Conditions.
9.4. The result of the System review may lead to the fees charged under the Agreement to be revised.
9.5. Where the Customer makes changes to the System during the Term, or permits a Third Party to do so, without Dynamic’s approval, without prejudice to any other remedy available to it, Dynamic reserves the right to terminate the Agreement, or alternatively exclude certain elements of the Service without any liability to the Customer.
10. Termination of Agreement
As per general terms and conditions.
We may assign, subcontract or otherwise dispose of our obligations under the Agreement or any other agreement between the parties to any other party. Specifically, where we procure that a third party (such as the system manufacturer) provides a preventative maintenance routine, telephone, modem or on site support or other services to the customer, the customer shall be bound by any additional terms which the third party may impose either on Dynamic or the customer, and if there is any inconsistency between the terms of business of the third party of and the terms of the Support Services Agreement the terms of the third party terms shall prevail. The customer may not assign the Support Services Agreement without prior written consent by a director of Dynamic.
12. Limitation of liability
12.1 The liability of Dynamic for any loss or damage of whatsoever nature and howsoever caused shall be limited to and in no circumstances shall exceed the aggregate price paid for the services under the Agreement up to the date in question.
12.2 In no event shall Dynamic, it’s partners or suppliers be liable for costs of substitute goods or services, nor will they be liable for loss of profits, loss of data or any indirect, special, incidental, consequential or punitive damages however caused, whether due to a breach of contract, negligence or otherwise unless such liability is determined by a Court of competent jurisdiction, without further recourse to appeal, that it was caused by gross negligence, wilful misconduct or fraudulent acts, by Dynamic.
13. Force majeure
13.1 Neither party shall be liable for any breach of its obligations resulting from causes beyond its reasonable control including but not limited to fires, terrorist activity, strikes (of its own or other employees), insurrection or riots, embargoes, container shortages, wrecks or delays in transportation, inability to obtain supplies and raw materials, requirements or regulations of any civil or military authority (an “Event of Force Majeure”).
13.2 If a default due to an Event of Force Majeure shall continue for more than twelve  weeks then the party not in default shall be entitled to terminate the Agreement. Neither party shall have any liability to the other in respect of the termination of the Agreement as a result of an event of Force Majeure.
14. Entire Agreement
14.1 The Proactive Services Agreement supersedes all prior Agreements made between Dynamic and the Customer for the provision of Support services and constitutes the entire Agreement between the parties relating to Dynamic’s IT Support Services.
14.2 No addition to or modification of any provision of these Terms and Conditions shall be binding upon the parties, except as set out herein, unless made in writing and signed by a duly authorised representative of each of the parties.
14.3 If any term, clause or condition of these Terms and Conditions is in violation of any applicable law, statute or regulation, the term, clause or condition in question shall be deemed as being deleted without effect to the remainder of these Terms and Conditions.
14.4 These Terms and Conditions shall remain in full force as if the deleted term, clause or condition had not been included. Dynamic and the Customer will negotiate, in good faith, alternative terms, clauses or conditions to those deleted that are mutually acceptable to both parties.
14.5 Headings are included for convenience only and shall not affect the interpretation of the Agreement.
15. Sole appointment
The customer shall not allow any person other than Dynamic or one of its representatives to undertake Proactive Services in respect of the System.
Addendum 10.Portal Usage
Unless otherwise agreed to in writing by Dynamic , by using theportal,you agree to the following Terms and Conditions of Use Policy.
Please read these terms and conditions carefully before using Dynamic's portal. If you do not agree with the Terms and Conditions of Use Policy, you will not be granted permission to use Dynamic’s portal.
All references in this Terms and Conditions of Use Policy to “we,” “us,” or “our” shall refer to Dynamic and its subsidiaries. All references in this Terms and Conditions of Use Policy to “you” or “your” shall refer to the users of the Dynamic portal.
GENERAL USE OF THE WEBSITE AND PORTALS
1.In order to access certain features of the portal, you may be required to provide information about yourself (such as identification or contact details) as part of the registration process, including to obtain a Dynamic account to access certain sections of the portal, or as part of your continued use of such portal. You agree that any registration information you give to Dynamic will always be accurate, correct, and up to date.
2.You agree to use Dynamic's portalonly for purposes that are permitted by (a)?this Terms and Conditions of Use Policy, and (b) any applicable law, regulation, or generally accepted practices or guidelines in the relevant jurisdictions (including any laws regarding the export of data or software to and from the United Kingdom or other relevant countries).
3.You agree not to access (or attempt to access) Dynamic's portal by any means other than through the interface that is provided by Dynamic . You specifically agree not to access (or attempt to access) any part of Dynamic's portal?through any automated means (including use of scripts or web crawlers) and shall ensure that you comply with the instructions set out in any robots.txt file present on such website or portals.
4.You agree that you will not engage in any activity that interferes with or disrupts Dynamic's portal(or the servers and networks which are connected to such portal).
5.You agree that you will not reproduce, duplicate, copy, republish, upload, post, transmit, distribute, modify, sell, trade, or resell Dynamic's portal, or any portion, feature, or content thereof, for any purpose; provided that you may download one copy of the materials on Dynamic's portal on any single computer for your non-commercial use only and you may print one copy of the materials on Dynamic's portal for your non-commercial use only; further provided that you keep intact all copyright and other proprietary notices on any such downloaded or printed materials.
6.You agree that you are solely responsible for (and that Dynamic has no responsibility to you or to any third-party for) any breach of your obligations under the Terms and Conditions of Use Policy and for the consequences (including any loss or damage which Dynamic may suffer) of any such breach.
7.You must be a human. Dynamic accounts registered by “bots” or other automated methods are not permitted.
8.Your Dynamic account may only be used by one person – a single Dynamic ?account shared by multiple people is not permitted.?
9.You agree and understand that you are responsible for maintaining the confidentiality and security of your Dynamic account and password, if any. Dynamic cannot and will not be liable for any loss or damage from your failure to comply with this security obligation.
10.You agree that you will be solely responsible to Dynamic for all activities that occur under your account.
11.If you become aware of any unauthorised use of your Dynamic account or password, you agree to notify Dynamic immediately.
14.We reserve the right to modify or discontinue, temporarily or permanently, your access to Dynamic'sportal, or your Dynamic account with or without notice.
15.You agree and understand that for the first 12 months, access to Dynamic portal is free of charge. After this period, the Dynamic portal will be a chargeable service and will be an addition as part of your IT support contract.
16.You agree and understand that completion of Dynamic's Cybersecurity Assessment Form does not act as an accreditation and does not completely protect you from a cyber attack. The assessment should be used as guidance only.
COMMENTS, COMMUNICATIONS, AND OTHER CONTENT
Certain features within Dynamic ’s portalmay allow you to post comments, send emails and other communications, submit and/or edit IT support tickets and submit suggestions, ideas, comments, questions, or other information (together “Commenting”). You agree, understand and represent that all of your Commenting: (i) is accurate, (ii) is owned or otherwise controlled by you, (iii) is not illegal, obscene, threatening, defamatory, invasive of privacy, infringing of intellectual property rights, or otherwise injurious to third-parties, and (iv) does not consist of or contain software viruses, political campaigning, commercial solicitation, chain letters, mass mailings, or any form of "spam." You may not use a false e-mail address, impersonate any person or entity, or otherwise mislead as to the origin of Commenting. Dynamic reserves the right (but not the obligation) to monitor and edit or remove any Commenting activity or content. If you do post Commenting content or submit Commenting material, you grant Dynamic a nonexclusive, royalty-free, perpetual, irrevocable, and fully sublicensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, and display such Commenting content throughout the world in any media, including the right to use the name that you submit in connection with such Commenting. Dynamic takes no responsibility and assumes no liability for any Commenting content posted by you or any third-party.
OWNERSHIP, COPYRIGHT AND TRADEMARK
All content included on Dynamic’s portal, such as trademarks, service marks, trade names, text, graphics, logos, icons, button icons, images, data compilations, domain names, and software, is the property of Dynamic or its content suppliers or used with permission. The compilation of all content on this site is the exclusive property of Dynamic and may be protected by U.K. and international copyright laws.All software used on this site is the property of Dynamic or their software suppliers and may be protected by United Kingdom and international copyright laws. Nothing on this site should be construed as granting any license or right to such content or software.
Dynamic’s portal has reasonable security measures to protect the loss, misuse, and alteration of the information under our control. Presently, the website and portal utilises Secure Socket Layer (SSL) encryption technology for all private transmissions.
RETAINING PERSONAL DATA
Dynamic will retain any personal data uploaded to the portal for the duration of your subscription to the service, and up to 24 months thereafter.
Addendum 11. Third Party Supplier Register
1&1 Internet Ltd https://www.ionos.co.uk/terms-gtc/terms-and-conditions/ Adobe Systems Software Ireland Ltd https://www.adobe.com/uk/ AFP Digital Limited https://www.afpdigital.co.uk/ Alphabet (GB) Ltd https://www.alphabet.com/en-gb Arena Group Limited https://www.arenagroup.net/ Best 4 Business Communications Ltd https://www.b4bc.co.uk/terms-conditions/ Cloud Distribution Ltd https://www.cloud-distribution.com/ Daisy Communications Ltd https://daisycomms.co.uk/terms-conditions/ Data Bubble Consultancy Ltd https://databubble.info/b2b-data/ EMCS Ltd http://www.emcs.co.uk/terms.htm EveryCloud Antispam Ltd https://www.everycloud.com/terms-and-conditions Exclaimer Ltd https://www.exclaimer.com/company/legal Experian Ltd https://www.experian.co.uk/legal/index.html?utm_medium=internalRef&utm_source=Consumer%20Services Hardy Fisher Services Ltd https://hardyfisherservices.com/ ICUK Computer Specialists https://www.icuk.net/
Insight Direct (Uk) Limited https://www.uk.insight.com/ IntY Limited https://www.inty.com/ Metronet Uk Limited https://m247.com/ Net Threat Ltd https://www.netthreat.co.uk/terms/ Nevaya http://www.nevaya.com/index.html RF Digital Systems Ltd https://www.rfdigitalsystems.co.uk/ The Antisocial Engineer Limited https://theantisocialengineer.com/ VoiceHost Limited https://www.voicehost.co.uk/terms-and-conditions Yoozoom Telecom Limited https://www.yoozoom.co.uk/wp-content/uploads/2019/02/Yoozoom-Terms-Conditions-of-Supply.pdf Zen Internet Limited https://www.zen.co.uk/standard-terms-conditions Zig Zag Access Ltd Microsoft
Addendum 12. Service Descriptions and Exclusions
1. IT Support Services
1.1 upon commencement of the Support contract dynamic will provide a schedule of cover confirming the scope of equipment, hardware and software (together “the System”) to be covered by the support contract. any equipment, hardware and software which is not listed on the schedule of cover is specifically excluded from the agreement.
1.2 support services include diagnosis of and/or the repair of any system, equipment, hardware or software failure. any service listed as a proactive service, proactive support service or projects below, is specifically excluded from the support contract. the customer can obtain the further services listed below for an additional charge and as an addendum to the agreement.
2. Proactive services
2.1. prior to commencement of the agreement for proactive services, dynamic will provide the customer with a schedule of cover confirming the scope of equipment, hardware and software (together “the System”) to be covered by the support contract. any equipment, hardware and software which is not listed on the schedule of cover is specifically excluded from the agreement.
2.2. where the customer’s agreement includes proactive services, dynamic will provide proactive maintenance to the customer’s system at the frequency agreed and as set out in the specification.
2.3. such proactive maintenance may include:
* Driver updates
* Firmware updates
* Operating system updates
* Backup testing and tuning
* Licence auditing
* Security monitoring
* Maintaining the IT asset register
* Working with the Customer account manager to develop and maintain an IT roadmap
* Maintaining the IT asset register
* Onsite floor walks across the userbase (at an agreed frequency) to gather support issues.
* Performance monitoring and tuning
* Retiring old IT equipment for safe and secure disposal
* Disaster recovery planning and testing
* Site documentation
* Liaison with the installations team to plan projects.
3. Proactive support services
3.1. prior to commencement of the agreement for proactive services, dynamic will provide the customer with a schedule of cover confirming the scope of equipment, hardware and software (together “the System”) to be covered by the support contract. any equipment, hardware and software which is not listed on the schedule of cover is specifically excluded from the agreement.
3.2. where the customer’s agreement includes proactive services, dynamic will provide proactive maintenance to the customer’s system at the frequency agreed and as set out in the specification.
3.3. such proactive maintenance may include:
* Router, Firewall, VLAN configuration changes
* New user setup
* Mailbox management
* User instruction
* Managing ‘out of office’ email responder
* File permission changes
* User name changes
* Dynamic approved Third Party Software installations
* Third Party Software Patching, where such Third Party Software is included in the Support Contract
* Windows updates to workstations only
* Restoring files from onsite backup
* Providing remote server access to pre-approved third parties
* IT house keeping tasks.
* Liaising with third parties in respect of hardware integrations.
4.1. Projects consist of workflows intended to upgrade, improve or expand existing systems. Any task included in Support, Proactive Services and Proactive Support Services is specifically excluded from Projects.
4.2. All projects will be scoped and priced before any works are undertaken by Dynamic.
4.3. Dynamic will require the Customer to pay an agreed sum in advance of any work in respect of the Project being undertaken.