Terms & Conditions
Master Terms and Conditions - Only relate to Managed and Private Cloud Solutions
1. Definitions1.1 In this Agreement (including for the avoidance of doubt, the SLA) unless the context otherwise requires the following expressions shall have the following meaning: "Affiliate" means a member of DIGITAL PLANET's group of companies comprising DIGITAL PLANET, its subsidiaries and holding companies (which terms shall have the meanings ascribed to them in Section 155 of the Companies Act 1963 as amended) and the subsidiaries of such holding companies; "Agreement Summary" means the Agreement Summary set out on page 3 of this Agreement; "Bankruptcy Event" means the relevant Party stops or suspends or threatens to stop or suspend payment of all or a material part of its debts or is unable to pay its debts as they fall due; or ceases or threatens to cease to carry on all or a substantial part of its business; or begins negotiations for, takes any proceedings concerning, proposes or makes any agreement for the deferral, rescheduling or other readjustment, general assignment of or an arrangement or composition with or for the benefit of some or all of its creditors of all or substantially all of its debts; or for a moratorium in respect of or affecting all or substantially all of its debts; or any step is taken by any person including the relevant Party or the other Party with a view to the examination, winding up or bankruptcy of the relevant Party; or any step is taken to enforce security over or a distress, execution or other similar process is levied or served against all or substantially all of the assets or undertaking of the relevant Party, including an encumbrance taking possession of any of the property or assets of the other Party or the appointment of a receiver, examiner, trustee in bankruptcy, manager or similar officer; or the other Party goes into liquidation; or any event or circumstance occurs which under the law of any relevant jurisdiction has an analogous or equivalent effect to any of the bankruptcy events listed above; "Charges" means the fees payable hereunder for the Services (as defined herein) as more particularly described in the Agreement Summary; "Customer information" means all information, data, records, material, programs, databases, e-mails, accounts information and all other information of the CUSTOMER which is to be located and/or stored on the Servers as part of the provision of Services hereunder; "Data Protection Acts" means the Data Protection Act, 1988 and the Data Protection (Amendment) Act 2003; "Effective Date" means the date on which this Agreement is signed by both Parties; "Force Majeure" means any event or matter which arises and which is beyond the reasonable control of either DIGITAL PLANET or the CUSTOMER which prevents such Party from carrying out its obligations under this Agreement and which such Party by the exercise of reasonable diligence is unable to prevent, avoid or remove, and shall include but not be limited to, strikes, lock-outs, labour and civil demonstrations and disturbances, acts of God, unavoidable accidents, acts of terrorism or war or conditions arising out of or attributable to war or terrorism; "DIGITAL PLANET Personnel" means all individuals engaged in the provision of the Services hereunder and who are engaged by DIGITAL PLANET to provide those Services; "Late Payment" means a payment not received within 30 days from the date on which it becomes payable pursuant to the terms hereof; "Purchase Order" means any purchase order issued by the CUSTOMER to DIGITAL PLANET (in the form attached in Schedule 2 hereto) for the purpose of ordering any specific services which are additional to the Services and which are to be provided under the terms of this Agreement; "Resolution Times" shall have the meaning ascribed to that term in the SLA; "Response Times" shall have the meaning ascribed to that term in the SLA; "Servers" means the server(s) on which the Customer Information will be located and/or stored in the course of providing the Services hereunder which for the avoidance of doubt may be virtual servers in a multi tenancy environment; "Services" means the services to be provided by DIGITAL PLANET to the CUSTOMER as set out in the SLA; "Work Product" means all reports, drawings, specifications, calculations, software, data, intellectual property rights, other documents or materials and all other things created under or arising out of this Agreement in whatever form.
2. Commencement and Duration2.1 This Agreement shall be effective from the Effective Date, and will continue until terminated in accordance with this Agreement. 2.2 DIGITAL PLANET shall provide the Services as and from the Services Start Date and until the End Date as agreed with the customer. 2.3 If the Agreement is not terminated within 30 days from the Services End Date, then the Agreement will automatically be extended for a further 12 month period beginning on the day following the Services End Date, subject to the rights of the Parties to terminate the Agreement in accordance with the provisions of clause 9 hereof.
3. Charges and Payment3.1 The Charges will be calculated in accordance with the SLA (and are quoted herein exclusive of any VAT which is payable pursuant to clause 3.4 below). Charging will begin as and from the Services Start Date and will be issued quarterly in advance. 3.2 DIGITAL PLANET shall be entitled to revise its Charges hereunder on giving 90 days notice to the CUSTOMER in the event that the CUSTOMER has requested a change of scope to the Services to be provided under this Agreement. Subject to the agreement in writing of the CUSTOMER to the change to the Charges, such change will commence immediately upon the change of scope in the Services having commenced. 3.3 The CUSTOMER agrees to pay the Charges within 30 days of the date of the invoice issued by DIGITAL PLANET. DIGITAL PLANET shall be entitled to charge daily interest on any late payment of the Charges at a rate equal to 2% per annum above the base lending rate of Bank of Ireland plc. 3.4 All Charges will be invoiced and paid in Euro unless otherwise stated. Value Added Tax ("VAT") payable by the CUSTOMER shall be added to DIGITAL PLANET invoices as appropriate. [The Parties hereby expressly agree that VAT at the relevant rate shall be chargeable by DIGITAL PLANET and payable by the CUSTOMER].
4. Provision of the Service4.1 In consideration of the mutual obligations hereunder (including the payment of the Charges), the CUSTOMER appoints DIGITAL PLANET as its service provider to provide the Services and DIGITAL PLANET agrees to provide the Services to the CUSTOMER in accordance with the terms and conditions of this Agreement as and from the Services Start Date.
5. Warranties5.1 DIGITAL PLANET warrants and represents that, subject to the remaining provisions of this clause 5:
- It will provide the Services with all reasonable due diligence, skill and care, and that all persons engaged by DIGITAL PLANET in connection with the provision of the Services shall be competent, appropriately qualified and experienced having regard to the Services being provided;
- DIGITAL PLANET shall use its best endeavours to provide the Services in accordance with the Response Times and Resolution Times set out in the SLA;
- following a written request to that effect by the CUSTOMER, DIGITAL PLANET will procure the immediate removal of any member of the DIGITAL PLANET Personnel and the replacement by another suitably qualified member of DIGITAL PLANET's personnel. The CUSTOMER agrees to act reasonably and in good faith in relation to any such request;
- It shall comply with all relevant legal and/or regulatory statutes, bylaws, regulations and requirements of any government, local or other competent authority and best industry practice including but not limited to those relating to health, safety and the environment;
- Any materials, software and, particularly, the remote access software, facilities and equipment used for or incorporated into the Services shall be fit for their intended purpose and of good quality and workmanship;
- Will endeavour to maintain the confidentiality and integrity of any Customer Information accessed by DIGITAL PLANET and/or DIGITAL PLANET Personnel in the course of providing the Services.
6. Limitation of Liability6.1 DIGITAL PLANET shall not be liable to the CUSTOMER, either in contract, tort (including negligence) or otherwise for direct or indirect loss of profits, business or anticipated cost savings (howsoever arising), nor for any indirect or consequential loss or damage (howsoever arising) including, but not limited to, lost revenue, lost profits, replacement goods, loss of technology, rights or services, loss or destruction of data or interruption or loss of use of Services, even if advised of the possibility of such damages, for any destruction of data (including without limitation Customer information) which occurs in the course of providing the SERVICES. 6.2 DIGITAL PLANET's liability to the customer in contract, tort (including negligence) or otherwise, howsoever arising under this Agreement, shall be limited in all cases to an amount equal to the Charges payable under this Agreement for 1 year. 6.3 The CUSTOMER acknowledges, agrees and accepts that DIGITAL PLANET shall be under no obligation to edit, review or modify any Customer Information and that DIGITAL PLANET does not supervise or examine the use to which any hardware and/or software covered by the Services is put by the CUSTOMER. 6.4 DIGITAL PLANET expressly excludes and waives all liability of any kind and howsoever arising in respect of Customer Information, data, any other material on the internet which can be accessed via the hardware and/or software covered by the Services and is not and shall not be responsible in any way for any goods (including data) or services provided by the CUSTOMER or by third parties advertised, sold or otherwise made available by means of the hardware and/or software covered by the Services. DIGITAL PLANET will have no liability of any kind arising as a result of the storage or processing of any data or information (including without limitation, Customer Information) on the Servers. 6.5 DIGITAL PLANET shall not be liable to the CUSTOMER either in contract, tort (including negligence) or otherwise for the acts or omissions of other providers of telecommunications, hardware, software or internet services (including domain name registration authorities) or for faults in or failures of their equipment. 6.6 Neither Party excludes or limits its liability for fraud or for death or for personal injury arising from its negligence or any liability to the extent the same may not be excluded or limited as a matter of law. This clause shall not affect the indemnities given in this Agreement.
7. Service Security, Specifications and Use7.1 Security 7.1.1 The CUSTOMER is ultimately responsible for the security and proper use of all user IDs and passwords related to the hardware and/or software used in connection with the Services and the CUSTOMER shall be responsible for taking all necessary steps to ensure that such IDs and passwords are kept confidential, secure, are used properly and are not disclosed to unauthorised parties.7.1.2 Each of the Parties agreed to immediately inform the other Party if there is any reason to believe that a user ID or password has or is likely to become known to individuals not authorised to use it or is being or is likely to be used in an unauthorised way. 7.1.2 The CUSTOMER represents, warrants and undertakes that it shall not do anything or request or require DIGITAL PLANET to do anything which may result in a claim being made against DIGITAL PLANET under the Data Protection Acts and the CUSTOMER agrees to indemnify and keep DIGITAL PLANET indemnified against any liability, damages, costs (including legal costs) and/or expenses arising as a result of such claim. 7.1.3 DIGITAL PLANET shall be responsible for the security and proper use of the remote access software and any other remote access tool used by DIGITAL PLANET in connection with the provision of the Services and will take all necessary steps to ensure that all access to the CUSTOMER's systems via the remote access software is kept confidential, secure, used properly and not disclosed to unauthorised people. 7.1.4 The CUSTOMER acknowledges and agrees that DIGITAL PLANET shall require access to the Customer Information in order to deliver the Services. The CUSTOMER expressly permits DIGITAL PLANET, subject to the confidentiality obligations under clause 9 and its other obligations under clause 5, to have access to Customer Information. 7.2 Specifications 7.2.1 The CUSTOMER agrees that, from time to time, DIGITAL PLANET may:
- For operational reasons, change the technical specification of the Services to be provided by DIGITAL PLANET hereunder, provided that any change to the technical specification is communicated in writing in advance to the CUSTOMER and does not materially affect the performance of the Services; and/or
- Suspend the Services, for operational reasons, such as repair, maintenance or improvement of the Services or because of an emergency; and/or
- Give to the CUSTOMER instructions with regard to the use by the Customer of its systems which are reasonably necessary for reasons of health and safety or to enable DIGITAL PLANET to effectively deliver the Services.
- To send, upload, download, use or re-use any information or material which is offensive, abusive, indecent, defamatory, obscene or menacing, or in breach of third party confidence, copyright, privacy or any other intellectual property rights;
- To send or provide unsolicited advertising or promotional material, or knowingly to receive responses to any unsolicited advertising or promotional material sent or provided using the Service by any third party; or
- Other than in accordance with the acceptable use policies of any connected networks.
8. Confidentiality8.1 This Agreement (including any negotiations relating thereto, the subject matter, terms or performance of this Agreement) and all information relating to the affairs or business of both Parties ("Confidential Information") shall be treated as proprietary and confidential. Both Parties undertake to treat as confidential, and to cause their employees, agents and sub-contractors to treat as confidential, any and all Confidential Information of the other Party which may come into its own possession or into the possession of any of their employees, agents or sub-contractors as a result of or in connection with the provision of the Services. The Parties shall use the Confidential Information solely for the purposes of fulfilling their obligations under this Agreement and shall not, subject to Clause 8.3, at any time during or after expiry or termination of this Agreement, disclose the said Confidential Information whether directly or indirectly to any third party without the prior written consent of the other Party nor copy the said Confidential Information unless specifically permitted to do so by the other Party. The Parties undertake to make all relevant employees agents and sub-contractors aware of this term and to take all steps necessary to ensure compliance with the obligations under this clause. 8.2 In protecting such Confidential Information, each Party shall employ the highest standard of care, which shall in no event be less than the standard of care it employs in protecting its own confidential information. 8.3 Except with the prior written consent of the party from which it is received (the "Disclosing Party"), no Party will disclose the other party's Confidential Information or any part thereof to any third party other than its own employees, agents or sub-contractors and then only to the extent that such disclosure is necessary for the performance of its obligations under this Agreement, in which case, the party that has received the Confidential Information (the "Receiving Party") will take all reasonable steps to ensure that such information is treated as confidential by the person to whom it is disclosed, including requiring such person to enter into an appropriate confidentiality agreement with the Receiving Party. This paragraph and sections herein will not apply to:
- Information required by the law of any jurisdiction to which the disclosure is subject, provided that the Receiving Party has taken all practicable legal steps to prevent such disclosure and has where practicable consulted with the other Party on the manner and timing of the disclosure;
- Information disclosed to the professional advisers or auditors of the Party under obligations of confidence no less stringent than those assumed by the Receiving Party hereunder (which the Receiving Party undertakes to enforce);
- Information lawfully in the possession of the recipient before the disclosure under this Agreement took place;
- Information that has come into the public domain through no fault of that Party or breach of confidentiality;
- Information that the other Party has given prior written approval to such disclosure;
- Information lawfully obtained from a third party who is free to disclose it; or
- Information which is received or obtained by the Receiving Party without restriction on disclosure from a source free to disclose it other than the Disclosing Party or an agent of the Disclosing Party.
9. Termination and consequencesTermination 9.1 Without prejudice to its other rights or remedies THE CUSTOMER shall be entitled to terminate forthwith this Agreement at any time by notice in writing to DIGITAL PLANET:
- If DIGITAL PLANET or any member of DIGITAL PLANET Personnel commits any material breach of any of its obligations under this Agreement (whether or not such breach would otherwise qualify as a repudiatory breach at common law):
(a) which is either incapable of remedy or if capable of remedy, is not remedied within 28 days of a notice having been served by the CUSTOMER; or (b) commits a repetition of such material breach;
- If DIGITAL PLANET or any member of DIGITAL PLANET Personnel commits any act or omission calculated or likely to bring the CUSTOMER into disrepute;
- If DIGITAL PLANET or any member of DIGITAL PLANET Personnel commits any act of serious misconduct which adversely affects the CUSTOMER;
- If the CUSTOMER considers that DIGITAL PLANET has breached or is about to breach any provision of this Agreement relating to safety or any site safety procedures or if the CUSTOMER considers that DIGITAL PLANET has committed or is about to commit an unsafe act which has caused or may cause injury to a person or damage to its property.
10. Force Majeure10.1 Neither Party shall be liable for any breach of its obligations under this Agreement resulting from the circumstances of Force Majeure. 10.2 Each Party shall use its reasonable endeavours to give notice to the other upon becoming aware of an event of Force Majeure which materially affects its ability to perform its obligations under this Agreement, such notice to contain details of the circumstances giving rise to the event of Force Majeure. 10.3 The Party unable to perform its obligations by reason of the event of Force Majeure shall be excused performance for the duration of such event plus such further period as may reasonably be necessary for it to resume the performance of its obligations. 10.4 If the performance of either Party's obligations under this Agreement is prevented, hindered or delayed by an event of Force Majeure for a period exceeding 60 days then the other Party may in its absolute discretion terminate this Agreement on giving written notice of termination without liability for any loss, damage, cost or expense as a result but without prejudice to any rights either Party may have in respect of any antecedent breaches of this Agreement or Charges unpaid at termination for Services carried out prior to such termination in accordance with this Agreement.
11. Faulty Services11.1 If, in the reasonable opinion of the CUSTOMER, DIGITAL PLANET at any time has not performed the Services in accordance with this Agreement or the Services have been provided to a poor standard ("Faulty Services"), then the CUSTOMER may require DIGITAL PLANET to re-perform those services at DIGITAL PLANET's own cost. 11.2 If DIGITAL PLANET fails to comply with its obligations under Clause 11.1 above within a reasonable time or the re-performed Services in the CUSTOMER's reasonable opinion still constitute Faulty Services, then in addition to any other rights the CUSTOMER may have under this Agreement, the CUSTOMER shall be entitled to obtain performance of those services from a third party and recover the costs of doing so from DIGITAL PLANET on demand.
12. Assignment and Sub-contracting12.1 This Agreement shall not be assigned or transferred or sub-contracted in whole or in part by DIGITAL PLANET without the prior written consent of the CUSTOMER. 12.2 DIGITAL PLANET shall be responsible for the acts, omissions and performance of any sub-contractor but shall not be responsible for the fraudulent or negligent acts of such sub-contractors if DIGITAL PLANET had no knowledge of such fraudulent or negligent acts at that time.
13. On-Site Services13.1 To the extent that all or any part of the Services are to be provided at or on or involve any entry on to CUSTOMER owned or controlled property then DIGITAL PLANET shall comply with the following:
- Prior to commencing the Services, DIGITAL PLANET and any sub-contractors shall have obtained all necessary information relating to the property including (without limitation) any local conditions and the facilities at the property and any other information relevant to the Services to be provided under and in accordance with this Agreement. The CUSTOMER shall ensure the information provided to DIGITAL PLANET as referred to in clause 13.1(i) is correct and accurate in all material respect;
- When on CUSTOMER property DIGITAL PLANET and any sub-contractor shall comply strictly with all of the CUSTOMER's regulations relating to the property in question and any other requirements the CUSTOMER might have in relation to DIGITAL PLANET's entry onto or presence at the property including but not limited to, health and safety, prevention of fire, use of facilities and security arrangements;
- DIGITAL PLANET shall ensure that all DIGITAL PLANET Personnel are dressed in a manner appropriate to the location and the work to be performed. This may include the requirement to wear safety clothing if so specified by the CUSTOMER; and
- If and to the extent required by the CUSTOMER, DIGITAL PLANET shall undergo induction training in relation to the regulations and requirements referred to above before entering on to the relevant property.
14. Ownership of Work Product14.1 The title to, ownership of and copyright and all other intellectual property rights in all Work Product shall vest in the CUSTOMER immediately upon the date of commencement of the Services or creation of the Work Product concerned. 14.2 Title to any software, data, drawings, specifications, documents and other materials originally owned by DIGITAL PLANET or its licensor used in the performance of the Services shall remain the property of DIGITAL PLANET (or its licensor). The CUSTOMER shall have the right to require DIGITAL PLANET to provide royalty free licences to the CUSTOMER for any such proprietary materials used or included in any Work Product arising from the performance of this Agreement. 14.3 The CUSTOMER shall have the exclusive right to apply for or authorise affiliate(s) of the CUSTOMER to apply for patents and obtain any other industrial or intellectual property rights in any country in the world on any item or method invented in the course or as a result of the carrying out of the Services. 14.4 DIGITAL PLANET shall at the request and reasonable expense of the CUSTOMER provide such assistance as the CUSTOMER may require in obtaining, maintaining, defending and/or enforcing the CUSTOMER's rights in respect of any Work Product, including without limitation the execution of all necessary documents, and shall procure that DIGITAL PLANET Personnel do likewise. DIGITAL PLANET unconditionally and irrevocably waives any non-transferable rights in any Work Product and shall procure that written, unconditional and irrevocable waiver of any moral or other non-transferable rights in the same, whether asserted or not, has been given by DIGITAL PLANET Personnel in a form approved by the CUSTOMER, acting reasonably, and delivered to it prior to the commencement of the Services.
15. Audit Rights15.1 The CUSTOMER or its authorised representatives shall have the right to audit all costs, rates and expenses related to the Agreement during the performance of the Services, during which time the DIGITAL PLANET shall maintain all records relevant to the Agreement. DIGITAL PLANET will maintain the aforesaid records either physically, by electronic media or on microfilm and the CUSTOMER or its authorised representatives shall have the right to reproduce and retain copies of any of the aforesaid records.
16. Compliant Systems16.1 [DIGITAL PLANET guarantees and undertakes, subject to Clauses [5.3 to 5.5] inclusive, that all systems, machinery, hardware, software and products supplied or used in the performance of this Agreement after this Agreement has commenced are or will, when supplied or used, be Compliant Systems. In this Clause the term Compliant Systems means that the performance and functionality of the systems, machinery, hardware, software and products will be consistent and uninterrupted regardless of the date and time on which they are being used or operated and regardless of any currency which they use or to which they refer where use of or reference to that currency is required by law or by the terms of this Agreement.]
17 Waiver17.1 No delay or omission by either Party in exercising any right, power or remedy provided by law or under this Agreement shall:
- Affect that right, power or remedy; or
- Operate as a waiver of it.