Terms and Conditions – August 2020

These terms and conditions apply until amended by us

 

  1. Definitions Used in this Document In these terms and conditions:

“We or Us” means ORB Tech Solutions Limited its employees or agents.

“You” means our customer or a party to whom we have agreed to provide the Service including its employees or agents.

“Agreement” means the Agreement for the supply of services by us to you.

“Annual Charge” means payment made for the provision of services under this Agreement for a period of 12 months.

“Monthly Charge” means payment made for the provision of services under this Agreement for a period of 1 month.

“Term” means the duration of the “agreement” which will be initially for a 12-month period and thereafter until terminated by 2 months’ notice.

“Business Hours” means the hours of 08.00 to 18.00 Monday to Friday excluding public holidays. “Equipment” means the equipment listed in the Schedule or added with the agreement of both parties from time to time during the term of this Agreement.

“Service” means the Service supplied or to be supplied by Us to you.

“Response Period” means response period specified in the Schedule.

“Force Majeure” shall include without prejudice to the generality of the expression act of God, war, riots, insurrection, governmental regulations, legal restrictions, embargoes, strikes, labour disputes, shortages of materials, fire, floods, tempest or any other cause or event outside of our control.

 

  1. Acceptance of Order

 

2.1 Once a proposal including these terms and conditions has been accepted by you then unless varied in accordance with clause 4 below these terms and conditions will apply until termination.

2.2 Our proposal may recommend the installation of additional Equipment. We may supply the Equipment at your request but shall have no liability for any defects therein except as provided by clause 11 unless arising from a faulty installation of such Equipment by Us.

2.3 In making recommendations in respect of Equipment or services We are relying on representations by you and undertake only to use our best endeavours to meet those requirements. It is assumed that you have raised any queries or concerns between our proposal being provided and any order placed and therefore at the point of order it shall be assumed that any proposal is accepted unconditionally.

2.4 No variation of our terms and conditions shall be effective unless requested by you in writing and agreed to by Us in writing.

 

  1. Representations

 

3.1 Our employees are not authorised to make verbal representations as to the description or quality of the Service or goods supplied under the Service. If a representation is made or an opinion expressed verbally which materially affects your decision to proceed then you must ensure that any such details are confirmed in writing by an authorised officer of our company prior to your acceptance of any proposal.

3.2 All descriptions and other information contained in sales literature advertisements and estimates may include information received from our suppliers and We cannot be held responsible for any inaccuracy in their information passed on in good faith.

 

  1. Service

 

4.1 The Service shall commence from the date in the agreement, proposal agreement date or such other date as may be agreed by both parties in writing.

4.2 Faults with the Equipment which are not identified by our Managed Service Agent should be reported by you during Business Hours to our Service Centre on the Service telephone number as notified to you.

4.3 We shall during Business Hours respond to the fault within the Response Period following an alert from our Managed Service Agent or report of the fault by you.

4.4 Upon reporting an Equipment fault you will provide Us with both the Equipment identification number and your company details. You will then be given an incident ticket reference.

4.5 Personnel supplied by Us under this Agreement will be suitably experienced service engineers.

4.6 Where you wish Us to provide Service for Equipment which has not been the subject of any maintenance agreement We will inspect and if remedial maintenance is required the costs may be charged at our normal charging rate from time to time in force. Thereafter We will only maintain that Equipment if a contract variation is agreed between the parties as provided in clause 4.7 below.

4.7 Where We are requested to provide Service for:

4.7.1 Equipment damaged by physical or electrical stress or non-normal use.

4.7.2 Equipment damaged by the customer’s unsuitable environment, such as damp or excess dust.

4.7.3 Equipment not listed in the Schedule or consumable items or accessories as defined by the Manufacturer.

4.7.4 Equipment not expressly included in a written proposal.

4.7.5 Material components concealed in the Equipment but which are not listed in the Schedule.

4.7.6 Application software or network/system operating firmware/software which does not form part of your Software Maintenance and Support Agreement you will be charged at our current charging rate from time to time in force.

4.7.6.1 In some instances, ORB Tech Solutions Limited may complete small change related works, subject to a Fair Usage Policy, defined as:

4.7.6.1.1 Usage in a manner that is consistent with reasonable customer behaviour or change related requests not exceeding 5% of the total time spent on reactive tickets for the customer.

4.7.6.1.2 Usage inconsistent with the principles set out in this document may be considered an unfair use of our services and a breach of our Fair Usage Policy.

4.8 All goods supplied in connection with the Service shall remain our property unless and until payment for the same is received by Us.

4.9 Variations during the term of the agreement with our authority are normally allowed within our agreement. Where support is provided for additional servers, PCs and laptops they will automatically be added to your recurring support agreement. This includes supported home users Equipment unless you have expressly asked Us to not support your users when working from home.

4.10 We will take all reasonable steps to ensure the confidentiality, security, and integrity of all data however obtained, transmitted or stored.

4.10.1 We reserve the right to listen to call recordings for the purposes of trouble shooting and support in respect to your VoIP services.

4.11 For all our Plans, the classification of Remote Support is as follows:

4.11.1 Any IT related issue, involving equipment and software in the known hardware/software schedule, where a loss of functionality has occurred.

4.11.2 ORB Tech Solutions Limited will work with third party software vendors, where there is an underlying support contract with said vendor e.g. Sage.

4.11.3 Hardware failures where all remote support efforts have been exhausted may require a visit to site to diagnose and may be subject to remedial costs, where hardware has failed (as per clause

4.11.4 Any change-based requests, where a loss of previous functionality has not occurred, such as software version upgrades, configuration changes etc. will typically be passed to the Sales department, who in conjunction with the Professional Services Team, will scope out and provide a formal proposal, as required.

4.12 ORB Tech Solutions Limited offers one guarantee, which are as follows:

4.12.1 Thirty-minute response time on all calls that are considered business limiting (can’t connect/work/print etc.). Sixty-minute response time on all calls considered administrative and not business limiting on the maximum support package.

4.12.2 With our choice of security products and Disaster Recovery solution deployed, including DNS Filter and Bitdefender, we guarantee that if an infection gets through, the costs of any remedial work to get your systems back up and running will be covered under your support agreement. ORB Tech Solutions accepts no liability for loss of revenue/income caused as a direct result of system downtime.

4.13 ORB Tech Solutions Limited reserves the right to increase service fees on the 1st of January every year at no more than 5%, providing no less than 3-months’ notice.

 

  1. Exclusions

5.1 The Services or replacement of spare parts deemed necessary by Us or its agents or servants due to:

5.1.1 Wilful acts defaults or negligent use of the Equipment outside of the manufacturers operating instructions.

5.1.2 Any damage caused by you or a third party as a result of upgrade or modification of the Equipment.

5.1.3 Faults with software or due to connections with other Equipment.

5.1.4 Use of destructive software and faulty software.

5.1.5 Service requested by you outside of Business Hours, excluding emergency remote support, will be charged in accordance with our current charging rate from time to time in force.

5.2 We will only supply and use as part of the Service materials and goods within the scope of published specifications from appropriate manufacturers and suppliers but the goods are supplied subject to any conditions of sale relating thereto by the relevant manufacturer or supplier. Where any materials or goods are found to be faulty then our liability in respect of such faults will be limited to replacement of such materials or goods.

5.3 No representation of any kind whatsoever on our part including (but not limited to) as to the merchantability or fitness for any purpose of the goods or services supplied under the Agreement shall be implied from anything said or written in negotiations between the parties prior to this Agreement.

5.4 Save as aforesaid our liability under this heading shall be limited to the monthly charge for the individual item of Equipment covered under this Agreement.

 

  1. Terms of Payment

6.1 The charges for our Services will be shown on our proposal.

6.2 Direct Debit is the mandatory payment method unless previously agreed otherwise.

6.3 Monthly recurring support invoices are payable by the 1st of the month for which the service is to be provided. Upon commencement of a new ORB Tech Solutions Limited contract, services will initially be billed pro-rata where applicable.

6.4 For materials supplied to customers without a Direct Debit arrangement in place, we reserve the right to request payment upon delivery.

6.5 Direct Debit payments are taken on 1 payment run each month as per the schedule published in our full Accounts Policy document.

6.6 In the absence of a Direct Debit arrangement or a written agreement to the contrary, we shall in all cases be entitled to receive payment within fourteen days of submitting an invoice to you.

6.7 In the event of non-payment of invoices, we reserve the right to cease services if we are unable to reach a resolution.

6.8 For our full Payment Policy please refer to our “Accounts Policy” document. If you do not have a copy of this document, please contact us.

  1. Your Obligations

7.1 You will at your own expense care for and operate the Equipment in accordance with the manufacturer’s specifications and instructions and will only use it for the purpose for which it was designed. If as a result of your reconfiguration or alteration to the Equipment remedial action is required, we reserve the right to charge you at our current charging rate from time to time in force.

7.2 You will ensure that no part of the Equipment is modified without our prior written approval or is subjected to unusual physical or electrical stress, accident, neglect, misuse or other damage. If any such action is taken without our approval, We reserve the right to charge for any remedial action required in accordance with our current charging rate from time to time in force.

7.3 No attachment shall be made to the Equipment nor repairs or adjustments made, nor shall any part of the Equipment be moved without our prior written approval, which shall not be unreasonably withheld.

7.4 You will not use on the Equipment any stationery, magnetic media or other consumable which does not meet with the manufacturer’s specifications or which are defective.

7.5 You will ensure the Equipment is operated in a skilful and proper manner by persons who are trained to a competent standard.

7.6 You will provide Us with full free and safe access in order to provide the Service to the Equipment and you will protect the health and safety of our personnel at the Equipment location address.

7.7 As We effectively manage your network We may make recommendations for improvements to provide resilience to your infrastructure to allow Us to fulfil our obligations under this Agreement. If you refuse to undertake these recommendations with a reasonable planned time, it may not be possible for Us to provide a Managed Service and therefore this Agreement will be immediately terminated and you will be liable to any costs incurred by Us.

7.8 In addition to clause 11 below you will:

(a) co-operate with Us in all matters relating to the Services;

(b) provide, for Us, our agents, subcontractors, consultants and employees, in a timely manner and at no charge, access to your premises, office accommodation, data and other facilities as reasonably required by the Us;

(c) provide, in a timely manner, such information and instructions as We may reasonably require, and ensure that it is accurate in all material respects;

(d) be responsible (at its own cost) for preparing and maintaining the relevant premises for the supply of the Services;

(e) inform Us of all health and safety rules and regulations and any other reasonable security requirements that apply at any of your premises.

  1. Termination & Variations

8.1 Unless an alternative term quoted on the proposal, any Agreement will continue for twelve months after acceptance of the proposal and thereafter until terminated by either party giving two months’ notice in writing to the other.

8.2 We may vary the Monthly Charge per item or the Annual Charges shown by giving two months’ notice in writing to you, such notice to take effect not before the first anniversary of the commencement date.

 

  1. Force Majeure

If performance by Us is delayed or hindered by circumstances outside its control or amounting to Force Majeure the following provisions shall apply:

9.1 We will as soon as reasonably practicable give you notice of the reasons of the delay or hindrance and failing to give such notice will not prevent Us relying on the remaining provisions of this clause and. We will incur no liability for failure to give such notice.

9.2 Our duty to perform shall be suspended for as long as the circumstances amounting to Force Majeure continue and the time for performance of our obligations shall be extended by a period equal to the duration of those circumstances.

 

  1. Indemnity

Subject to clause 11 you agree to indemnify Us against any damages losses costs or expenses incurred by Us in respect of any claim brought against Us by any third party for:

10.1 Any loss injury or damage wholly or partly caused by the Equipment or its use.

10.2 Any loss injury or damage in any way connected with the performance of this Agreement.

 

  1. Limitation of Liability

11.1 Nothing in this Agreement limits or excludes our liability for:

(a) death or personal injury caused by its negligence;

(b) fraud or fraudulent misrepresentation; or

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

11.2 Subject to clause 5 We shall not be liable to you, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this agreement for:

(d) loss of profits;

(e) loss of sales or business;

(f) loss of agreements or contracts;

(g) loss of anticipated savings;

(h) loss of or damage to goodwill;

(i) loss of use or corruption of software, data or information;

(j) any indirect or consequential loss.

11.3 If our performance of its obligations under this Agreement is prevented or delayed by any act or omission by you, your agents, subcontractors, consultants or employees, we will not be liable for any costs, charges or losses sustained or incurred by you that arise directly or indirectly from such prevention or delay.

 

  1. Data Protection

12.1 For the purposes of this clause 12 the definitions set out in this clause 12.1 shall apply:

(a) Data Controller: shall have the meaning of ‘data controller’ set out in section 1(1) of the Data Protection Act 2018 and, from the time of its implementation into law in England and Wales the meaning set out in Article 4(7) of the GDPR.

(b) Data Processor: shall have the meaning of ‘data processor’ set out in section 1(1) of the Data Protection Act 2018 and, from the time of its implementation into law in England and Wales the meaning of ‘processor’ set out in Article 4(8) of the GDPR

(c) Data Protection Legislation: means, for such time as they are in force in England and

Wales, the DPA, the GDPR and all related legislation which may supplement, amend or replace them and which relates to the protection of individual’s rights in their personal data and the protection of their privacy.

(d) Data Subject: an individual who is the subject of Personal Data.

(e) DPA: means the Data Protection Act 2018.

(f) GDPR: means Regulation (EU) 2016/679 (which may be referred to as the ‘General Data Protection Regulation’) and/or such legislation as may give effect to its terms in England and Wales.

(g) Personal Data: has the meaning set out in section 1(1) of the Data Protection Act 2018 and, from the time of its implementation into law in England and Wales the meaning set out in Article 4(1) of the GDPR, and for the purposes of this Agreement means Personal Data provided by one party to this agreement to the other.

(h) processing and process: have the meaning set out in section 1(1) of the Data Protection Act 2018.

12.2 ORB Tech Solutions Limited and the Client agree that for the Purposes of Data Protection Legislation that the Client shall be the Data Controller and that ORB Tech Solutions Limited shall be a Data Processor in respect of any Personal Data which is transferred from the Client to ORB Tech Solutions Limited under the terms of this Agreement.

12.3 As a Data Processor ORB Tech Solutions Limited shall process the Personal Data only to the extent necessary to perform its obligations pursuant to this Agreement and/or in accordance with the Client’s instructions from time to time.

12.4 Where a party is a Data Processor pursuant to this Agreement it shall take steps to ensure that its employees are informed of their obligations in relation to Personal Data that they process in the course of their employment.

 

 

12.5 Each Party warrants to the other that it will process the other’s Personal Data in compliance with all applicable Data Protection Legislation.

12.6 Where a party to this Agreement becomes a Data Processor pursuant to it, it warrants that: (a) having regard to the state of the art of technological development, the commercial availability of such technology, the nature of the processing in question, the cost of implementation, and the material risk to the rights of affected Data Subjects, the Data Processor shall take appropriate technical and organisational measures to secure relevant Personal Data against unauthorised or unlawful processing, and against accidental loss or destruction;

(b) it has lawful authority to provide all relevant Personal Data to the other, and that processing by the recipient for the purposes and in the fashion directed shall not represent a breach of Data Protection Legislation;

(c) it will not transfer any Personal Data outside of the European Economic Area (or such jurisdictions as may be subject to adequacy decisions which deem them to have appropriate levels of data protection legislation in place to permit such transfers) without the prior authorisation of the Data Controller or as is necessary for the performance of its obligations hereunder;

(d) it will assist the Data Controller, insofar as reasonably possible in responding to any requests made by any relevant Data Subject which concern the exercise of that Data Subjects rights under the GDPR, subject to the Client reimbursing it for the cost of the same; (e) it shall report to the Data Controller any suspected data breach concerning the Personal

Data which comes to its attention and shall provide reasonable assistance to the Data Controller in informing the relevant regulator and/or affected Data Subjects, subject always to the Client reimbursing it for the cost of the same;

(f) it shall, on request, take reasonable steps to demonstrate to the Data Controller, to the extent that is reasonable given the nature of the processing in question and the administrative burden of demonstrating such compliance, that it complies with Data

Protection Legislation; and

(g) it shall delete or return all relevant Personal Data at the request of the Client.

Indemnity

12.7 Each Party agrees to indemnify and keep indemnified and defend at its own expense the other Party against all costs, claims, damages or expenses incurred by the other Party or for which the other Party may become liable due to any failure by the first Party or its employees or agents to comply with any of its obligations pursuant to this clause 12. In order to avail itself of this indemnity the claiming party must: promptly notify the indemnifier of any relevant claim of which the indemnified party becomes aware; not make any admission of liability or offer to settle in respect of any relevant claim without the prior written permission of the indemnifier; grant the indemnifier full control of all relevant proceedings on request, and; provide the indemnifier with such assistance in dealing with such claims as it may reasonably request.

12.8 The Parties acknowledge that to the extent that either Party is a Data Processor pursuant to this Agreement it will be reliant on the other, the Data Controller, for direction as to the extent to which the Data Processor is entitled to use and process the relevant Personal Data. Consequently, the Data Processor will not be liable to the Data Controller for any claim brought by a Data Subject arising from any action or omission by the Data Processor, to the extent that such action or omission resulted directly from the Data Controller’s instructions or the quality of those instructions.

Appointment of sub-contractors

12.9 The Data Processor may not authorise any third party to process Personal Data provided by the Data Controller without first obliging that processor to treat that Personal Data to the same standard as it is obliged to do pursuant to this Agreement. Where the appointment of any such third party is made in specific furtherance of an objective specified by the Client, ORB Tech Solutions Limited shall endeavour to inform the Client of the identity of the third-party controller.

 

  1. Agreement of Terms and Conditions:

Acceptance of any products and services from ORB Tech Solutions Limited shall be deemed as an automatic acceptance of these Terms and Conditions.