Terms & Conditions

For the Supply of Support Services

Version 4.0 · TheLogic Limited, Munro House, Quarrywood Court, Livingston, EH54 6AX · Registered in Scotland No. SC280224

1. Definitions

1.1 In these Conditions the following words have the meanings given to them, unless the context requires otherwise:

1.2 Words and phrases not defined here but defined in Data Protection Law (such as Controller, Processor, Processing and Data Subject) have the same meaning here.

1.3 Headings are for convenience only and do not affect interpretation. The singular includes the plural, and references to a statute include any subordinate legislation and any amendment or replacement of it.

2. Term and Renewal

2.1 The Agreement starts on the Commencement Date and runs for the Initial Term. After the Initial Term it continues from year to year until terminated.

2.2 Either party may terminate the Agreement at the end of the Initial Term, or at any time after that, by giving the other at least three months’ written notice.

2.3 If the Client ends the Agreement during the Initial Term, other than under clause 8.1, the Client will pay the Company 25% of the Charges that would have been payable for the remainder of the Initial Term. This is a genuine pre-estimate of the Company’s loss and is payable on written demand.

3. The Services

3.1 The Company will provide the Support Services with reasonable care and skill, in line with good industry practice and relevant industry standards in force from time to time.

3.2 The scope of the Support Services is set out in the Managed Services Agreement.

3.3 The Client will:

• (a) give the Company reasonable access to its premises, systems and staff as needed to deliver the Support Services;
• (b) keep its equipment and software in good working order and properly insured;
• (c) tell the Company promptly about any faults, irregularities or material concerns affecting the IT environment;
• (d) use its IT in line with manufacturer instructions and applicable software licences; and
• (e) co-operate reasonably with the Company throughout the Agreement.

4. Charges and Payment

4.1 The Client will pay the Charges set out in the Managed Services Agreement.

4.2 Invoices are payable within 30 days of the invoice date unless the Managed Services Agreement provides otherwise.

4.3 All Charges are exclusive of VAT and any other applicable taxes, which the Client will pay in addition.

4.4 Reasonable out of pocket expenses incurred by the Company in delivering the Support Services will be charged at cost, with prior notice to the Client where practicable.

4.5 Hardware and software supplied by the Company remain the property of the Company until paid for in full.

4.6 If an invoice is not paid within 30 days of the due date, the Company may:

• (a) charge interest under the Late Payment of Commercial Debts (Interest) Act 1998 (currently calculated as the Bank of England base rate plus 8% per annum, accruing daily from the original due date until paid in full); and
• (b) suspend the Support Services, in whole or in part, until the overdue amount, together with any interest and charges, is paid in full.

4.7 The Client will not withhold, deduct or set off any amount due under this Agreement against any claim or counterclaim, except where required by law.

5. Liability

5.1 This clause sets out the Company’s entire liability to the Client under or in connection with the Agreement and prevails over any other clause.

5.2 Nothing in this Agreement limits or excludes either party’s liability for:

• (a) death or personal injury caused by its negligence;
• (b) fraud or fraudulent misrepresentation; or
• (c) any other liability that cannot lawfully be limited or excluded.

5.3 Subject to clause 5.2, the Company is not liable for any:

• (a) loss of profit, revenue, business, opportunity, goodwill or anticipated savings;
• (b) loss or corruption of data, except to the extent caused by the Company’s breach of clause 7 or Data Protection Law;
• (c) loss arising from third party claims; or
• (d) indirect, consequential or special loss,

whether arising in contract, delict (including negligence) or otherwise, and whether or not foreseeable.

5.4 Subject to clause 5.2, the Company’s total liability in any twelve month period, however arising, is capped at the lower of (a) 100% of the Charges paid by the Client in that period and (b) the limit of the Company’s professional indemnity and cyber insurance cover in force at the time the claim arises.

5.5 The Client is responsible for backing up its data unless the Managed Services Agreement specifies that backup is part of the Support Services.

6. Confidentiality

6.1 Each party will keep the other’s Confidential Information confidential and only use it for the purposes of the Agreement.

6.2 Confidential Information may be disclosed to a party’s employees, contractors and professional advisers who need to know it for the Agreement, provided they are bound by equivalent duties of confidence.

6.3 The duty of confidentiality does not apply to information that:

• (a) is or becomes public through no breach of this Agreement;
• (b) was already lawfully known to the receiving party before disclosure;
• (c) is received lawfully from a third party without restriction; or
• (d) is independently developed without using the other party’s Confidential Information.

6.4 A party may disclose Confidential Information where required by law, regulation or a competent authority. Where lawful and practicable, the disclosing party will notify the other first.

6.5 This clause survives termination of the Agreement.

7. Data Protection

7.1 In delivering the Support Services the Client is the Controller and the Company is the Processor of Personal Data. The Company’s processing of Personal Data on behalf of the Client is governed by Data Protection Law and by this clause.

7.2 Subject matter and duration: the subject matter of the processing is the delivery of the Support Services; the duration is the term of the Agreement, together with any post-termination period reasonably required to return or delete Personal Data.

7.3 Nature and purpose: the Company processes Personal Data to provide IT support, maintenance, security, backup, communications and related services as described in the Managed Services Agreement.

7.4 Types of Personal Data and categories of Data Subjects: typically names, contact details, employment information and IT system data relating to the Client’s employees, contractors, customers and other contacts.

7.5 The Company will:

• (a) process Personal Data only on the Client’s documented instructions, which include these Conditions and the Managed Services Agreement, unless required to do otherwise by law (in which case the Company will notify the Client where lawful to do so);
• (b) ensure that personnel authorised to process Personal Data are bound by appropriate duties of confidence;
• (c) put in place and maintain appropriate technical and organisational measures to protect Personal Data against unauthorised or unlawful processing, accidental loss, destruction, damage or disclosure, taking into account the state of the art, the costs of implementation, and the nature, scope, context and purposes of processing;
• (d) notify the Client without undue delay, and in any event within 24 hours of becoming aware, of any Personal Data breach affecting Personal Data processed under this Agreement, and reasonably assist the Client in dealing with that breach;
• (e) assist the Client, taking into account the nature of the processing and the information available, in meeting its own obligations under Data Protection Law, including in relation to data subject rights requests, data protection impact assessments and consultations with the Information Commissioner;
• (f) make available to the Client the information reasonably necessary to demonstrate the Company’s compliance with this clause and, on reasonable notice and subject to its confidentiality obligations to other clients, allow audits by the Client or an independent auditor appointed by the Client; and
• (g) on termination or expiry of the Agreement, and at the Client’s choice, return or securely delete all Personal Data processed under this Agreement, unless the Company is required by law to retain it.

7.6 The Client authorises the Company to engage sub-processors for the purposes of delivering the Support Services. The Company will:

• (a) maintain a list of sub-processors and provide it to the Client on request;
• (b) impose data protection obligations on each sub-processor that are at least equivalent to those in this clause; and
• (c) remain liable to the Client for the acts and omissions of its sub-processors as if they were its own.

The Company will notify the Client of any intended change in sub-processors and give the Client a reasonable opportunity to object on legitimate data protection grounds.

7.7 The Company may process Personal Data in the United Kingdom and in any other jurisdiction recognised by the UK Government as providing an adequate level of protection. The Company will not transfer Personal Data to any other jurisdiction without first putting in place a valid transfer mechanism under Data Protection Law, such as the UK International Data Transfer Agreement or the UK Addendum to the EU Standard Contractual Clauses.

7.8 The Company will not respond directly to any request from a data subject relating to Personal Data processed under this Agreement, except as required by law or with the Client’s prior written consent.

8. Termination

8.1 Without prejudice to clause 2.2, either party may terminate the Agreement with immediate effect by written notice if the other:

• (a) commits a material breach of the Agreement and, if the breach can be remedied, fails to remedy it within 30 days of being asked in writing to do so; or
• (b) becomes insolvent, has a receiver, administrator or liquidator appointed, enters into any voluntary arrangement with its creditors, ceases or threatens to cease trading, or any equivalent event occurs in any jurisdiction.

8.2 Termination does not affect any accrued rights or obligations, or any clause which expressly or by implication survives termination, including those on Charges due, confidentiality, data protection, liability, non-solicitation and governing law.

8.3 On termination, each party will return or, at the other party’s option, securely destroy all property and information belonging to the other.

8.4 On termination, the Client will return any hardware or software supplied by the Company that has not been paid for in full. If the Client does not return it within a reasonable period, the Company may, on reasonable notice, recover it from the Client’s premises.

8.5 Subject to all outstanding Charges being paid, the Company will, on termination, hand over network documentation, administrator credentials and other records reasonably needed for the Client (or its incoming provider) to take over the IT environment.

9. Non-solicitation

9.1 During the term of the Agreement, and for 12 months after it ends, neither party will, without the other’s prior written consent, solicit for employment or engagement any employee of the other who has been materially involved in the Agreement.

9.2 This clause does not prevent general recruitment advertising that is not specifically targeted at the other party’s staff, or the hiring of someone who responds to such advertising without prior solicitation.

9.3 If a party breaches clause 9.1, the breaching party will pay the other the equivalent of six months’ gross salary of the employee concerned (calculated at the rate paid by their previous employer) as compensation for recruitment and replacement costs. The parties agree that this is a genuine pre-estimate of loss.

10. General

10.1 Notices. Formal notices under this Agreement must be in writing. They may be delivered:

• (a) by hand, effective on delivery;
• (b) by first class pre-paid post to the registered office of the recipient, effective two Business Days after posting; or
• (c) by email to the addresses notified by the parties for this purpose, effective at the time of sending provided that no bounce-back or delivery failure is received, and provided also that any notice of termination, breach or claim sent by email is also followed up by post within five Business Days.

10.2 Force majeure. Neither party is liable for delay or failure to perform any obligation under this Agreement (other than payment of money) caused by events beyond its reasonable control, including industrial action, fire, flood, war, terrorism, pandemic, internet or telecoms outages affecting third parties, and acts of government. If the delay continues for more than 60 days, either party may terminate this Agreement by written notice without further liability, except for Charges accrued before termination.

10.3 Entire agreement. This Agreement is the entire agreement between the parties on its subject matter and supersedes any earlier discussions, representations or agreements. Variations must be in writing and signed by both parties.

10.4 Waiver. A failure or delay in exercising any right under this Agreement does not waive that right, and any single or partial exercise does not prevent further exercise.

10.5 Severability. If any provision of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, the remaining provisions remain in full force and effect.

10.6 Independent contractors. The parties are independent contractors. Nothing in the Agreement creates a partnership, joint venture, agency or employment relationship.

10.7 Assignment. The Client may not assign or transfer the Agreement without the Company’s prior written consent. The Company may assign or subcontract any of its rights or obligations, provided it remains responsible to the Client for the performance of any subcontractor.

10.8 Third parties. A person who is not a party to the Agreement has no rights under it.

10.9 Announcements. Neither party will make a public announcement about the Agreement or the other party without the other’s prior written consent, unless required by law. The Company may, however, list the Client by name and logo as a customer for marketing purposes unless the Client objects in writing.

11. Governing Law and Jurisdiction

11.1 This Agreement is governed by Scots law.

11.2 The parties submit to the exclusive jurisdiction of the Scottish courts.