Exec Sys Terms and Conditions

Definition of Terms

Supplier:
Exec Sys LTD the supplier of these service facilities.

Customer:
The Individual, Partnership, Firm or Company as detailed on the front of the contract under the heading Customer.

Customer Site(s):
The site or sites of Customer where these support services apply as detailed on the front of this document under the heading Customer Site(s).

Conditions of Service

The following Terms and Conditions constitute the “Service Agreement” and govern the delivery of certain maintenance services described by the Supplier to Customer. The Service Agreement constitutes the entire understanding between Customer and the Supplier related to the subject matter hereof. All prior written or oral agreements, understandings, communications or practices between Customer and the Supplier are hereby superseded insofar as they related to the Services hereunder. Any amendments, additions or deletions to this Service Agreement must be signed by a Director of the Supplier.

Equipment Covered
All items of Equipment requiring coverage by this agreement must be listed on the front of the Service Agreement under the heading Description of Equipment. A Server or Workstation also includes its original Microsoft Windows Operating System and any Microsoft Office Product any additional software loaded either before or after this Service Agreement is excluded unless explicitly listed overleaf. Where more than one item of Equipment is covered by this Agreement, this Agreement will be construed severally and distinctly in respect of each such item of Equipment and any failure in respect of any one item of Equipment shall not prejudice or affect the rights and liabilities of the parties in respect of each other item of Equipment.

Service Hours
Service Hours are from 8:00AM to 6:00PM every day excluding Weekends and Bank Holidays unless the Customer has optionally extended the Service Hours to 24 hours per day, 365 days per year, as agreed and indicated on the front of the document.

Service Level Commitments
The Supplier will provide a Call Number that will route your call to a priority queue to one of our Support Call Centres. All Calls will either be answered within five minutes or with an opportunity for Customer to leave a message. Customer may request corrective maintenance service calls to The Supplier in the event any item of Equipment Covered failing and requiring repair. A request for service will be considered accepted once it has been logged on the system and an appropriate Call Number allocated and communicated to Customer “Service Call”. The Supplier will use all reasonable endeavours to provide a resolution for a “Service Call” within the Contracted Response Time.

Contracted Response Time
The Contracted Response Time is the maximum number of service hours (defined in service hours above) elapsed from the moment that the customer has logged a call (evidenced by receipt of a call number) to the time at which the technician is either on-site or available remotely ready to commence resolution of the problem ( In Attendance ).

Priority	Response Time	Fix Time
1	1 hour	4 hour
2	4 hour	8 hour
3	8 hour	16 hour

Additional Services
The Supplier will also use all reasonable endeavours to provide the following Additional Services when agreed on the front of this document:

Technical Account Management;
Technical contact and contact in emergencies also provides assistance with technical decisions, resource management and capacity planning.

Pro-Active Support;
Pro-Active support is a weekly/monthly health checks on the Customer System(s) to carry out such Administrative tasks and Preventative Maintenance checks detailed in the Supplier’s Pro-Active support document. The period in which this Pro-Active support is carried out is indicated on the front of this document.

Anti-Virus Management;
Anti-Virus Management is a periodic update of all Data files required to detect and delete viruses introduced into the network from Data Drives. The Supplier will not be held responsible potential downtime on customers system because of any form of exploit. The Supplier deploys best practices to minimize the occurrence of any exploit.

Backup Management;
Online backup service and business continuity are managed and provided by Backup Data Centre LTD.

Anti Spam Management;
Anti-Spam service are managed and provided by Secure Mail Centre LTD.

Limits of Service
The Supplier’s obligation to provide services under this Service Agreement shall not extend to:

• Equipment not detailed on overleaf or included as Equipment Covered.
• Service requested outside the agreed Service Hours.
• Service for Equipment with no real accepted faults (including but not limited to user error, software viruses, spyware, and any software installed without authorization from The Supplier, telecommunication line interferences, fluctuations in electrical supply or other defects in the operating environment are not covered by this Service Agreement).
• Equipment failure or defect resulting directly or indirectly (as determined in The Supplier sole discretion), from improper use or care of the Equipment, ( including but not limited to operation outside normal specifications, improper use of a power supply, damage due to vandalism, explosion, flood or fire)
• Service due to Customer’s wrongful act, negligence or failure to comply with this Service Agreement.
• Service for general Equipment overhauls, reconditioning or relocations.

Customer Responsibilities
To receive service Customer must comply with the following:

• Use the appropriate National Number during agreed Service Hours to request service.
• Provide a detail of the affected Equipment Covered and a location.
• Provide a description of the fault.
• Where possible provide a description of the events leading up to the fault and any error messages displayed that is also true and accurate.
• Provide adequate backup for your data and software, Customer accepts that The Supplier has no responsibility for any loss of data or software. You must have adequate arrangements for the reinstallation of any software or data not detailed as Equipment Covered.
• Provide free, safe and sufficient access to the Customer Site(s) and the Equipment Covered in order for The Supplier to fulfil their obligations under this Service Agreement.
• Ensure that no data are stored on any local devices/workstations that are not included in the Customers backup schedule.
• In providing service under this Service Agreement the Supplier may need to access hardware or software not supplied by the Supplier. Some warranties for third party products may become void if the Supplier works on them. It is Customers responsibility to review the terms of those warranties and ensure that the Supplier performance will not affect the warranties, or, if it does, the effect will be acceptable to you.

Consideration
In consideration for the Supplier providing the services described within the Service Agreement the Customer agrees to pay to the Supplier the Annual payments agreed under the heading Agreed Annual Payment on the front of this document. The Customer will be invoiced their Annual Charges in advance commencing on the Support Start Date as agreed on the front of this document and thereafter annually/quarterly in advance. If the Customer prefers he may pay the agreed Annual Charge quarterly, this must be paid by Direct Debit and agreed in advance.

Payment Terms
Invoices made payable under this contract must be paid within thirty days of the invoice date. If the Customer fails to make payment within thirty days the Supplier reserves the right to:

• Withhold service facilities until payment is made in full.
• Charge interest at a rate of 2% above bank base rate per calendar month or part thereof.
• Charge an administration fee of £50.00.

Additional Charges
In addition to the charges set out in this Agreement the Supplier will also, using the Supplier’s current commercial rates or the reduced hourly/daily rates agreed on the front of this document for:

• Any service requested but not covered by this Service Agreement.
• Any service requested out of Service Hours, this will be charged at time and half the current commercial rates or the reduced hourly/daily rates agreed on the front of this document.
• Any service requested out of Service Hours which falls on a Sunday or Bank holiday, this will be charged at double the current commercial rates or the reduced hourly/daily rates agreed on the front of this document.
• Consumables requested by the Customer.
• Any maintenance, service or fitting of parts required that’s cost to supply exceeds the current replacement value of the equipment/software. In such cases the Customer will be offered replacement equipment/software or new equipment/software at a discounted rate or an agreed charge for the excess work.
• Upgrades, Installation or Re-Installation of any Software not covered under this Service Agreement
• Increased time or re-visits due to failure of Customer to give adequate access to Equipment Covered.
• User error, spyware, and any software installed without authorization from the Supplier.

Customer Agreement
The Customer agrees: unless specifically requested

• Not to assign the Agreement without the written consent of the Supplier (such consent not to be unreasonably withheld).
• To allow a service engineer or other authorised representative of the Supplier to enter the Customer Site(s) for the purpose of inspecting, repairing, servicing or removing the Equipment during the Service Hours.
• To use for each item of Equipment only supplies approved by the Manufacturer of the Equipment.
• Not to attempt to alter, repair or otherwise interfere with any item of Equipment unless strictly in accordance with the manufacturers instruction manual.
• Only to use each item of Equipment in accordance with the manufacturers specifications.
• Not to move any item of Equipment from the Customer Site(s) without the prior written consent of the Supplier. Such consent not to be unreasonably withheld provided that the new location falls within the normal servicing area of the Supplier.
• That permission has been obtained for both Customer and the Supplier to access and use the Covered Equipment including all data, hardware and software components for the purpose of providing service under this Service Agreement.
• That any information or data disclosed to the Supplier is not confidential or proprietary to you or any third party.
• That no information of services, operations and information rendered or disclosed by The Supplier will be shared with any third party. The Supplier holds the intellectual property on how they operate and hold this service agreement.

Service Agreement Term
This Service Agreement shall commence on the date the Customer signed and shall continue for a Primary Term of one year(s) from the Service Start Date. After the primary term this Agreement shall continue from quarter to quarter unless terminated by either party giving the other at least ninety days notice in writing such notice to expire on an anniversary of the Service Start Date and not before the end of the Primary Term. Such Termination shall be known as “Terminated Validly”.

Termination
The Supplier may terminate this Service Agreement, without any prejudice to any of its rights hereunder, forthwith and without further notice if the Customer:

• Commits any major or persistent breach of any term or condition of this Agreement.
• Fails to pay a due invoice within 60 days of the invoice being due.
• Being a limited company, calls any meeting of creditors, has a receiver appointed or enters into liquidation.
• Not being a limited company has a bankruptcy petition served upon him or enters into or arranges a composition with his creditors.
• Termination of this Agreement by the Supplier will not discharge any pre-existing liability of the Customer to the Supplier. On such termination the Supplier shall be entitled to recover from the Customer, in addition to all existing outstanding charges, the total of the charges which would have been payable had the Agreement not been terminated but had continued until the first day upon which it could be Terminated Validly

Customer Early Termination
Customer recognises that the pricing in this Service Agreement has been calculated on the basis that the Service Agreement continues until Customer is entitled to terminate as detailed under Service Agreement Term and that the Supplier has made commitments to both its Staff and Suppliers on the basis of this commitment. The Customer may terminate this agreement before they are entitled to do so but it is agreed that the following charges will be made for early termination: except if there is a persistent breach by either party

• Before Service Start Date
• Customer agrees to pay 50% of the total of all Charges which would have been payable had the Agreement not been terminated but had continued until the first day upon which it could be Terminated Validly.
• After Service Start Date but before the end of the Primary Term
• Customer agrees to pay 100% of the total of all Annual Charges which would have been payable had the Agreement not been terminated but had continued until the first day upon which it could be Terminated Validly, less a discount of ten per cent from each whole year remaining.
• After the end of the Primary Term but before an Anniversary
• Customer agrees to pay 100% of the total of all Annual Charges which would have been payable had the Agreement not been terminated but had continued until the first day upon which it could be Terminated Validly.
• Early Termination of this Service Agreement by Customer will not discharge any pre-existing liability of Customer to the Supplier.

The Supplier’s Property
All rights and title to the supplies or spare parts delivered to the Customer under this agreement will be reserved to the Supplier until the time of receipt by the Supplier of all sums payable in respect of this agreement and any other sums due from the Customer at the date of delivery on any other account. Until such payments have been received in full the Supplier may repossess the supplies or spare parts and thereafter resell the same and for this purpose the Customer grants an irrevocable right and license to the Supplier or their authorised representative to enter upon all or any of its premises with or without vehicles during Service Hours. This right will continue notwithstanding the termination of this Agreement and without prejudice to any accrued rights to the Supplier Until payment as aforesaid the Customer will hold and store the supplies in a fiduciary capacity as liable for the Supplier and in such a place and way that they are clearly and readily identifiable as the Supplier’s property.

Liability
Personal Injury and Death; Nothing in the Service Agreement shall be construed as limiting the liability of either party for personal injury or death resulting from the negligence of a party or its employees.

Damage;Notwithstanding any other provision hereof, neither party shall be liable for any damages for lost profits, lost revenues, loss of goodwill, loss of anticipated savings, loss of customers, loss of data or interference with business, or for the cost of purchasing replacement services, or for any indirect, incidental, special, consequential, exemplary or punitive damages, whether or not caused by the acts or omissions or negligence of its employees or agents, and regardless of whether such party has been informed of the possibility of the likelihood of such damages.

Limitation; The Supplier’s sole liability for damages arising out of the furnishing or the failure to furnish Services (including but not limited to mistakes, omissions, interruptions, delays, errors or other defects) is limited to the service credits due under this Service Agreement.

Disclaimer of Warranties;Except for warranties expressly made in the Service Agreement, the Supplier makes no warranties or representations express or implied, either in fact or by operation of law, statutory or otherwise, including warranties of satisfactory quality and fitness for a particular purpose.

Force Majeure;Neither party shall be liable, nor will any service credits be applied, for any failure or delay in carrying out its obligations under this Service Agreement due to causes beyond such party’s reasonable control, including but not limited to: Acts of God, fire, flood or other catastrophes, any law, order, regulation, direction, action or request of any governmental entity or agency, or any civil or military authority, national emergencies, insurrections, riots, strikes, lock-outs, work stoppages or other labour difficulties.

General
The invalidity of any individual provision of these Conditions shall not affect the validity of the remaining provisions. The Supplier’s failure to insist on a strict performance of any provision of this Service Agreement shall not be deemed to be a waiver of its rights and remedies in any subsequent default by the Customer in the performance or compliance with any of these Conditions. The Customer acknowledges that where this Agreement shall be signed by an employee or an agent of the Customer who has been held out to the Supplier as duly authorised in that behalf the Agreement shall be binding on the Customer. The Supplier reserves the right to assign the benefit or burden of this contract.

Any notice requiring to be given or served in writing to the Supplier under or pursuant to these Terms and Conditions must be sent by prepaid first class recorded delivery and the Customer must retain the relevant receipt otherwise the notice shall not be considered as having been duly given or served. Such notice to be sent to the address on the front of this Service Agreement. The Supplier reserves the right for any dispute under this Service Agreement to be referred to an independent arbitrator in accordance with the Arbitration Act 1950 (as amended).

Both the Supplier and the Customer agree that this Agreement will be ruled by English law and agree to submit to the jurisdiction of the English courts. The Terms of this Service Agreement are believed to be fair and reasonable and reflect the pricing, staffing and insurance arrangements of the Supplier. If the Customer believes that the Terms and Conditions are not fair and reasonable or the Customer does not agree with any Term or Condition within this Service Agreement then the Customer should not sign his acceptance of this Service Agreement and should advise the Supplier in writing.