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1. DEFINITIONS AND CONSTRUCTION
1.1 In this Agreement the following expressions shall apply (save
where the context otherwise requires):
1.1.1 “Commencement Date” means service start date.
1.1.2 “Customer Equipment” means the hardware and software
set out in Schedule 1 which the Customer is required to have in
use in order to use and enable the Services.
1.1.3 “Downtime” means a period during the Hours during
which there is total loss of the Services.
1.1.4 “HA Proprietors” means all persons who own the
Intellectual Property Rights in the Software or who have license
rights in the Software or any part or parts thereof and which license
rights are superior to the license rights of Noscito as detailed
in Schedule 1.
1.1.5 “the Hours” means the hours during which the
Services are to be provided as set out in Schedule 1. References
to “hour(s)” and “minute(s)” in this Agreement
will, unless otherwise indicated, be taken only to refer to the
elapse of time during the Hours.
1.1.6 “Initial Period” means the period of 12 months
commencing on the day immediately following the end of the Trial
Period.
1.1.7 “Intellectual Property Rights” means all copyrights,
patents, database rights, registered and unregistered design rights,
trademarks and service marks and applications for any of the foregoing,
together with all trade secrets, know-how, rights to confidence
and other intellectual and industrial property rights in all parts
of the world and for the full term thereof including all rights
to renew the same.
1.1.8 “Outage” means an instance of Downtime.
1.1.9 “Services” means an IT infrastructure usage and
management service, details of which are set out in Schedule 1.
1.1.10 “Service Fee” means the fee payable by the Customer
to Noscito for the provision of the Services as set out in Schedule
1.
1.1.11 “Service Interruption” means a period during
the Hours during which there is partial loss of the Services.
1.1.12 “Service Levels” means the levels of performance
to which the Services are to be provided to the Customer by Noscito
as set out in Schedule 2.
1.1.13 “Software” means the software programs or components
thereof used by Noscito to provide the Services which is specified
as the Software in Schedule 1 as the same may be modified, added
to or replaced during the continuance of this Agreement.
1.1.14 “System” means the Software and the Noscito
hardware as the same operate together in the provision of the Services.
1.1.15 “Tolerances” means instances of diminution of
or interruption to the Service Levels as set out in Schedule 2 and
which are to be disregarded from the point of view of establishing
whether Noscito has fallen below those performance levels or breached
any provision of this Agreement.
1.1.16 “Trial Period” the period of 30 days from the
Commencement Date.
2. PROVISION OF SERVICES AND LICENCES
2.1 Noscito agrees to supply the Services on a non-exclusive basis
upon the terms and conditions of this Agreement.
2.2 This Agreement shall commence on the Commencement Date and
unless cancelled within 14 days thereof it shall, subject to payment
of the Service Fee by the Customer and to the provisions for termination
set out in this Agreement, continue for the Initial Period and thereafter
until terminated by either party giving to the other not less than
three (3) months notice in writing (any such notice to expire not
earlier than the end of the Initial Period).
2.3 The Customer confirms that by entering into this Agreement
it accepts the terms in favour and for the benefit of the relevant
HA Proprietor and that it will comply with the HA Proprietors license
terms and conditions in relation to the use of the Software to the
extent that the same are relevant to the Customer which for the
purposes of information only are set out in Schedule 1.
2.4 The Customer acknowledges that any HA Proprietor or Noscito
may at any time, and without notice, incorporate license management
software into the Software for the purposes of ensuring that license
rights are not exceeded.
3. SERVICE FEE
3.1 No charge shall be made to the Customer for the Service during
the Trial Period.
3.2 At the end of the Trial Period the Customer undertakes to pay
the Service Fee for the Services pursuant to the terms set out in
this Agreement. The Customer also agrees that it shall pay Noscito
for any additional services Noscito provides at Noscito’s
normal hourly rates as notified to the Customer from time to time.
3.3 Noscito shall send to the Customer an invoice in respect of
the Service Fee monthly in advance on the first working day of each
month.
3.4 All invoices are payable within 30 days after the date thereof
unless otherwise agreed in writing.
3.5 Noscito shall be entitled to charge the Customer interest in
respect of the late payment of any sums due under this Agreement
(as well after as before judgment) at the rate of 3 per cent per
annum above the base rate from time to time of Barclays Bank plc
from the due date therefore until payment.
3.6 Noscito shall be entitled to increase the Service Fee with effect
of the first and each subsequent anniversary of the Commencement
Date by giving at least 60 days’ prior written notice to the
Customer.
4. SERVICE LEVELS
4.1 Noscito undertakes with the Customer that the Services will, allowing
for the Tolerances, be provided to the levels of performance specified
in the Service Level save where otherwise expressly provided for by
this Agreement.
4.2 The service level warranty set forth in clause 4.1 shall only
apply to the Services and do not apply to any supplemental services
provided by Noscito to the Customer.
4.3 Subject to the Tolerances, in the event that the Customer experiences
any interruption to the Services or degradation of the Services
such that Noscito has failed to meet the Service Level to the degrees
set out in Schedule 2, Noscito will, upon the Customer’s request,
credit the Customer’s account as set out in Schedule 2.
5. OUTAGES, SERVICE INTERRUPTIONS AND CHANGES
TO SERVICES
5.1 Outages or Service Interruptions may be made by Noscito when in
its reasonable opinion they are necessary to facilitate improvements
to or maintenance of the Services. Noscito will use reasonable endeavours
to minimise the Outages or Service Interruptions that may be caused
by a change.
5.2 If Outages or Service Interruptions are required under clause
5.1 (“Scheduled Interruptions”) Noscito will endeavour
to schedule such so as to minimise impact on the Services and will
notify the Customer of the anticipated commencement time of the
Outages or Service Interruptions and estimated duration thereof.
5.3 Customer requested interruptions (including, but not limited
to, request for a server to be re-booted) will be fulfilled but
will not be considered a break in service, and will not be a factor
when calculating breaches of the Service Level for any purpose or
give rise to any liability on the part of Noscito. The Customer
is required to request such interruptions via the customer support
number listed in Schedule 2. This type of request will require a
minimum notice period of [1] hour.
5.4 Noscito shall provide initial notice to the Customer’s
Representative by telephone, e-mail or comparable notification service
within [1] hour of becoming aware of an event that has caused or
may cause an unscheduled Outage. In the event the Customer first
becomes aware of such event, the Customer shall promptly provide
notice to Noscito via customer support number listed in Schedule
2. Status reports about the event will continue at [1] hour intervals
until either the event has been resolved or Noscito and the Customer
have agreed a course of action that does not require continued notification.
6. WARRANTIES AND INDEMNITIES
6.1 Noscito warrants and undertakes with the Customer that it will
use its reasonable efforts to provide the Services and to exercise
reasonable care and skill and in accordance with the terms of this
Agreement.
6.2 Except for the express warranties set forth in this clause
6 the Services are provided on an “as is” basis, and
the Customer’s use of the services is at its own risk. Noscito
does not make and hereby disclaims, any and all other express and/or
implied warranties, statutory or otherwise, including, but not limited
to, warranties of merchantability, fitness for a particular purpose
and any warranties arising from a course of dealing, usage, or trade
practice. Noscito does not warrant that the Services will be uninterrupted,
error-free, or completely secure.
6.3 Noscito does not and cannot control the flow of data to or
from its network and other portions of the Internet. Such flow depends
in large part on the performance of internet services provided or
controlled by third parties. At times, actions or omissions of such
third parties can impair or disrupt connections to the Internet
(or portions thereof). Although Noscito will use commercially reasonable
efforts to take all actions it deems appropriate to remedy and avoid
such events, Noscito cannot guarantee that such events will not
occur. Accordingly, Noscito disclaims any and all liability resulting
from or related to such events.
7. CUSTOMER OBLIGATIONS AND WARRANTIES
7.1 The Customer is required at all times during the continuance of
this Agreement to maintain the Customer Equipment in good order and
working condition and to ensure that the Customer Equipment does not
fall below the specifications therefor contained in Schedule 1.
7.2 The Customer undertakes at all times during the continuance
of this Agreement to comply with all regulations introduced by Noscito
from time to time for the better management of the Services including
but not limited to, defining minimum specifications for routers,
firewalls and PC’s, regulations to ensure that the network
through which the Services are provided are not overloaded, that
the security and integrity of the network is maintained and to comply
with regulations of any data centre facility engaged by Noscito
in connection with the Services. Noscito shall give not less than
14 days’ written notice to the Customer of such regulations.
7.3 In the event that the Customer is in breach of its obligations
under clauses 7.1 or 8.2, then:
7.3.1 Noscito can not be held responsible should the Services fail
to comply with the Service Levels as a result (directly or indirectly)
of such Customer breach and no service credits will accrue on account
thereof;
7.3.2 Noscito shall be entitled to charge the Customer for staff
time engaged on rectifying any resulting problems at Noscito’s
standard charge rates for the time being; and
7.3.3 Noscito may terminate or suspend support in relation to the
Services without prejudice to any pre-existing rights and obligations
of either party.
7.4 The Customer represents, warrants and undertakes that:
7.4.1 it has and shall during the continuance of this Agreement
have the legal right and authority to place and use and have used
any of its equipment as contemplated under this Agreement;
7.4.2 it will use the Services only for lawful purposes and in
accordance with this Agreement; and
7.4.3 any software, data, equipment or other materials provided
by the Customer to Noscito or employed by the Customer in its use
of or receipt of the Services shall not infringe any Intellectual
Property Rights of any third party and shall not be obscene or defamatory
of any person and shall not violate the laws or regulations of any
state which may have jurisdiction over such activity.
7.5 In the event of any breach of any of the foregoing representations
or warranties, in addition to any other remedies available at law
or in equity, Noscito will have the right to suspend immediately any
related Services if deemed reasonably necessary by Noscito to protect
the proper interests of Noscito or its other customers. If practicable
and depending on the nature of the breach, Noscito may (in its absolute
discretion) give the Customer an opportunity to remedy such breach.
In such case once the Customer has remedied the breach to Noscito’s
satisfaction, Noscito will promptly restore the Service(s).
8. LIMITATION OF LIABILITY
8.1 Noscito shall not be liable for any loss or damage of whatsoever
nature suffered by the Customer arising out of or in connection with
any act, omission, misrepresentation or error made by or on behalf
of the Customer or arising from any cause beyond Noscito’s reasonable
control.
8.2 Noscito shall not be liable for any loss or damage of whatsoever
nature suffered by the Customer arising out of or in connection
with arising from the withdrawal or failure of the HA Proprietor
to provide its service.
8.3 Noscito is not liable for any indirect loss, consequential
loss, loss of profits, revenue, goodwill, loss of or need to reconstitute
data howsoever arising suffered by the Customer and arising in any
way in connection with this Agreement or any maintenance or other
agreement entered into between the Customer and Noscito or for any
liability of the Customer to any third party.
8.4 The Customer accepts that Noscito is in no way liable for any
virus or other contaminants which enter the Customer’s email
system or computer network via email.
8.5 None of the clauses above shall apply so as to restrict liability
for death or personal injury resulting from the negligence of Noscito
or its appointed agents.
8.6 No matter how many claims are made and whatever the basis of
such claims, Noscito’s maximum aggregate liability to the
Customer under or in connection with this Agreement or any other
agreement between the parties or any software related to this Agreement,
in respect of any direct loss (or any other loss to the extent that
such loss is not excluded by clauses 8.1 to 8.5 above or otherwise)
whether such claim arises in contract or in tort shall not exceed
a sum equal to the level of Noscito’s professional indemnity
insurance cover.
8.7 The Customer agrees that it is in a better position to foresee
and evaluate any loss it may suffer in connection with this Agreement
and that the Service Fee has been calculated on the basis of the
limitations and exclusions in this clause 8 and that the Customer
will effect insurance as is suitable having regard to its particular
circumstances and the terms of this clause 8.
9. INTELLECTUAL PROPERTY RIGHTS
9.1 The parties hereby agree that the Customer shall not acquire any
Intellectual Property Rights whatsoever in respect of the Software
and in all materials created or originated by it in connection with
or related to the provision of the Services hereunder.
10. TERMINATION
10.1 For the purposes of this clause the following events shall be
deemed “acts of default”:
10.1.1 if the Customer fails to pay any moneys due pursuant hereto
within 7 days of the due date therefore;
10.1.2 if a party commits any material breach of any term of this
Agreement (other than one falling under clause
10.1.1 above) and which, in the case of a breach capable of being
remedied, shall not have been remedied within 14 days of a written
request by the other party to remedy the same;
10.1.3 if a party shall convene a meeting of its creditors or if
a proposal shall be made for a voluntary arrangement within Part
I of the Insolvency Act 1986 or a proposal for any other composition
scheme or arrangement with or assignment for the benefit of its
creditors or if the other shall be unable to pay its debts within
the meaning of section 123 of the Insolvency Act 1986 or if a trustee,
receiver, administrative receiver, administrator or liquidator or
similar
officer is appointed in respect of the other party or all or any
part of its business or assets or if a petition is presented or
a meeting is convened for the purpose of considering a resolution
or other steps are taken for the winding up of the other party or
for the making of an administration order (otherwise than for the
purpose of an amalgamation or reconstruction) or if any analogous
step is taken in any jurisdiction.
10.2 If the Customer commits an act of default then Noscito may
either forthwith suspend the provision of the Services hereunder
(or any of them or any part of them) and no such suspension shall
be deemed a breach of any term or provision of this Agreement or
give rise to any service credits or in its absolute discretion terminate
this Agreement by notice in writing forthwith.
10.3 If Noscito commits an act of default then the Customer may
terminate this Agreement upon giving 7 day’s notice in writing
to Noscito.
10.4 Any termination of this Agreement for any reason shall be
without prejudice to any other rights or remedies a party may be
entitled to hereunder or at law and shall not affect any accrued
rights or liabilities of either party nor the coming into force
or the continuance in force of any provision hereof which is expressly
or by implication intended to come into or continue in force on
or after such termination.
11. CONFIDENTIALITY
11.1 Each of Noscito and the Customer hereby undertakes with the other
(and, where applicable, for the benefit of the HA Proprietors) to
keep confidential all information they receive regarding the other,
its business and its clients and not without the other party’s
written consent disclose such either in whole or in part to any other
person save those of its employees agents and sub-contractors involved
in the provision or receipt of the Services and who have, and to the
extent that they have, a need to know the same.
11.2 The provisions of clause 11.1 above shall not apply to the
whole or any part of the Confidential Information to the extent
that it is:
11.2.1 trivial or obvious;
11.2.2 already in the other’s possession without duty of
confidentiality on the date of its disclosure;
11.2.3 in the public domain other than as a result of a breach
of this clause; or
11.2.4 to the extent that disclosure of such information may be
required by any governmental agency or by operation of law and,
in either such case, the party required to make such disclosure
shall use reasonable endeavours to notify the other party of such
requirement prior to making the disclosure.
11.3 Each of Noscito and the Customer hereby undertakes to the
other to make all relevant employees agents and sub-contractors
aware of the confidentiality of the Information and the provisions
of this clause 11.
12. FORCE MAJEURE
12.1 Neither party hereto shall be liable for any breach of its obligations
hereunder, except in respect of payment, resulting from causes beyond
the reasonable control of the party in default (or its sub-contractors)
including but not limited to act of God, war, insurrection, riot,
civil commotion, Government regulation, embargo, explosion, strike,
labour dispute, illness, flood, fire or tempest (an ‘Event of
Force Majeure’). Any time limit or estimate for a party to perform
any act hereunder shall be suspended during an Event of Force Majeure.
12.2 If a default due to an Event of Force Majeure shall continue
for more than 30 days then the party not in default shall be entitled
to terminate this Agreement. Neither party shall have any liability
to the other in respect of the termination of this Agreement as
a result of an Event of Force Majeure but such termination shall
not affect any pre-existing rights or obligations of either party.
13. NOTICES
Any notice to be given hereunder shall be delivered or sent by first
class post, email or by facsimile transmission (such email or facsimile
transmission notice to be confirmed by letter posted within 12 hours)
to the address or facsimile number of the other party as notified
to them in writing from time to time and any such notice or other
document shall be deemed to have been served (if delivered) at the
time of delivery and (if sent by post) upon the expiration of 48 hours
after posting and (if sent by facsimile transmission or email) upon
the expiration of 3 hours after dispatch.
14. GENERAL
14.1 If any provision of this Agreement shall be found by any court
or administrative body of competent jurisdiction to be invalid or
unenforceable the invalidity or unenforceability of such provision
shall not affect the other provisions of this Agreement and all provisions
not affected by such invalidity or unenforceability shall remain in
full force and effect. The parties hereby agree to attempt to substitute
for any invalid or unenforceable provision a valid or enforceable
provision which achieves to the greatest extent possible the economic
legal and commercial objectives of the invalid or unenforceable provision.
14.2 Subject to clause 14.3 this written Agreement (including the
Schedules) and any other expressly incorporated document constitute
the entire agreement between the parties hereto relating to the
subject matter hereof.
14.3 No change, alteration or modification to this Agreement shall
be valid unless in writing and signed on behalf of both parties
hereto.
14.4 The Customer shall not be entitled to assign this Agreement
nor all or any of its rights and obligations hereunder.
14.5 Noscito shall be entitled to sub-contract the whole or any
part of its obligations hereunder to any third party but shall remain
liable as if it were performing the Services itself.
14.6 This Agreement shall be governed by and construed in accordance
with English law and the parties submit to the exclusive jurisdiction
of the courts of England and Wales.
SCHEDULE 1
Service Fee The charge of £ per month to be made for the Services.
Services Noscito remote is a web-based remote network, systems,
and applications monitoring solution.
Software “Portal” means the password-protected web page
unique to You through which it may access a database containing
Data, create Reports, modify Elements , configure RSMs in the case
of Noscito Services.
“RSM” means a remote service monitor, which is a computer
program that remotely collects availability and performance Data
from computer systems within the customers network. The Data is
transferred securely over the internet and stored within the Portal.
Customer Equipment Hardware requirements - are an Intel Pentium
iii or equivalent with 512MB of memory dedicated to the RSM; minimum
700Mhz Processing Speed, 100MB hard drive space required for install,
additional space for logging.
Operating System Requirements - Microsoft Windows NT 4.0 (SP6a or
later), Microsoft Windows 2000 (SP2 or later), or Windows XP
Browser Requirements – Internet Explorer 5.5 (with latest
patches)
HA Proprietors Rights Relevant to the Customer
The Hours 24 Hours a day 7 days a week 52 weeks of the year with
the exception of the first Sunday in every month between 12:00pm
and 16:00pm GMT set aside for system maintenance.
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