Security Everywhere - Terms and Conditions
The Customer’s attention is drawn to the exclusions from and limitations of liability contained in these Terms and Conditions and in particular to the provisions of Clauses 3.3, 4.1, 6.3, 6.4, 11.4, 11.8, 11.9, 12.3, 12.4, 12.6, 12.8, 14.1, 15.2, 16.3, 17.1, 19 and 22 of this Agreement
The services supplied by Security Everywhere are intended to reduce the insecurity of the Customer, but no security service can provide perfect security. Security Everywhere believes that the limitations of liability in these Terms and Conditions are a reasonable split of risk as between Security Everywhere and the Customer. The security services provided by Security Everywhere are not intended to be a substitute for the Customer obtaining appropriate Cyber Security Insurance.
THESE TERMS AND CONDITIONS apply to all supplies made by Westtek Solutions Limited (incorporated and registered in England and Wales with company number 07175950 whose registered office is at Room 10, Apsley Mills Cottage, Stationers Place, Apsley, Hertfordshire, HP3 9RL trading as “Security Everywhere” (“Security Everywhere”)) to you and whether you are a person, partnership, company or other undertaking (the “Customer”).
(1) Westtek Solutions Limited is a company engaged in the provision of certain security services for computer systems and has agreed to provide specified security services for the Customer’s computer system pursuant to this Agreement.
(2) The Customer wishes to purchase and Westtek Solutions Limited wishes to supply the specified security services indicated in the Choice of Service to the Customer.
(3) Westtek Solutions Limited and the Customer have agreed that any future supply of security services and associated services such as configuration by Security Everywhere to the Customer will be governed by the provisions of this Agreement and set out in a future Choice of Service.
1.1 The following definitions apply in these Terms and Conditions, and unless expressly indicated otherwise in a Choice of Service in any Choice of Service:
‘Additional Charges’ means Security Everywhere’s charges to be caclulated by Security Everywhere in accordance with the Standard Rate;
‘Additional Services’ means any services provided by Security Everywhere in addition to the services which Security Everywhere is bound to provide for the Total Fee;
‘Agreement’ means the agreement based on these Terms and Conditions;
‘Business Day’ means a day (i) other than a Saturday or Sunday or (ii) other than a public holiday in England;
‘Choice of Service’ means all or some of the following services as chosen by the Customer:
· Computer Security delivered by Security Everywhere with ConnectWise (using a service known as “SentinelOne” which service is more particularly defined at https://www.security-everywhere.com/terms-and-conditions/computer-security-service-specification/;
· Password Security delivered by Security Everywhere (using the service known as “Keeper”) which service is more particularly defined at https:/www.security-everywhere.com/terms-and-conditions/password-security-service-specification/;
· Email Security delivered by Security Everywhere with Check Point Software Technologies (formerly Avanan) [(who provide the service known as “Email Collaboration Advanced Protect”)] which service is more particularly defined at https:/www.security-everywhere.com/terms-and-conditions/email-security-service-specification/;
· Backup and Recovery 365 , delivered by Security Everywhere (using the service known as “Cove Backup” supplied by N-Able) which service is more particularly defined at https:/www.security-everywhere.com/terms-and-conditions/backup-recovery-365-service-specification/
· Backup and Recovery for Google Workspace, delivered by Security Everywhere (using the service known as “Google Workspace Backup” supplied by Redstor) which service is more particularly defined at https:/www.security-everywhere.com/terms-and-conditions/backup-recovery-google-workspace-service-specification/
· Cyber Security Training delivered by Security Everywhere with Brigantia (using the service as provided by KnowBe4) which service is more particularly defined at https:/www.security-everywhere.com/terms-and-conditions/cyber-security-training-service-specification/;
‘Clause’ means a clause of these Terms and Conditions;
‘Commencement Date’ means the date on which the Customer entered into a Choice of Service or otherwise commenced receiving the Managed Supply;
‘Consequential Loss’ means pure economic loss, loss of profit, loss of use of trade marks, loss of business, loss of reputation and like loss;
‘Customer Data’ means all information or data in whatever form relating to the Customer, Users or the Customer’s clients and business stored or processed by the Customer in connection with its use of the Managed Supply including any information provided by Users in connection with their access to or use of the Managed Supply (but excluding always data collected directly by Security Everywhere in the ordinary course of its business about the Customer and relating to the formation or operation of this Agreement, a Choice of Service or Security Everywhere’s relationship with the Customer);
‘Data Controller’ means a data controller as defined in the Data Protection Legislation;
‘Data Processor’ means a data processor as defined in the Data Protection Legislation;
‘Data Protection Legislation’ means the General Data Protection Regulation 2016 and the Data Protection Act 2018 (as amended);
‘Failure’ has the meaning given in Clause 6.3;
‘Intellectual Property Rights’ means a patent, right in a design, copyright, data base right, domain name, trade mark and any other intellectual property right whether or not registered or capable of registration and wherever situated in the world;
‘Loss of Data’ means a loss of or corruption to data or programs held or used by or on behalf of the Customer;
‘Malware’ means malware, viruses, trojans and other forms of harmful computer code;
‘Managed Supply’ means the configuration and provision of the security services to be provided by Security Everywhere pursuant to this Agreement or a Choice of Service;
‘Monthly Renewal Date’ means the date in a month on which the Managed Supply commences and on which the Customer is billed (provided that where such date is the 29th, 30th or 31st in a month Security Everywhere may make such variations as it deems appropriate);
‘Objectionable’ in the context of material or content means material or content that contains Malware or is defamatory, obscene, hateful, profane, which contains racist terminology or is unlawfully pornographic;
‘Party’ means Security Everywhere or the Customer;
‘Personal Data’ means such of the Customer Data which is personal data as defined in the Data Protection Legislation;
‘Personal Data Breach’ means a personal data breach as defined in the Data Protection Legislation affecting the Customer Data;
‘Representative’ means the contact within the Customer’s business appointed and authorised by the Customer pursuant to Clause 8 of this Agreement;
‘Proprietary Software’ means software which is used by the Customer but licensed by a Third Party and managed or supplied as part of the Managed Supply;
‘Source Code’ means the source code of software, in the language in which the software was written, together with all related flow charts and technical documents;
‘Standard Rate’ means Security Everywhere’s standard rate for time, materials, services, travel, accommodation and subsistence from time to time prevailing;
‘Standard Support Hours’ means 9:00 a.m. to 5:30 p.m. English time during a Business Day;
‘Stored Data’ means all information or data in whatever form belonging to the Customer, Users or the Customer’s clients stored or processed by Security Everywhere in connection with the provision of the Managed Supply including for the avoidance of doubt where the Managed Supply;
‘Support Services’ means Security Everywhere’s software support services as indicated in clause 12.2, which support services form part of the Managed Supply;
‘Term’ means the period of one month unless otherwise agreed in writing by the Parties;
‘Termination Event’ means of the following events:
(a) the Customer fails to pay any moneys due under this Agreement or a Choice of Service within thirty (30) days of the due date;
(b) the Customer breaches a term or condition of this Agreement or a Choice of Service (other than a term or condition requiring payment of moneys as provided for in paragraph (a) above) and (in the case of a breach capable of being remedied) fails to have remedied such breach within thirty (30) days of a written request by Security Everywhere so to do;
(c) where the Customer (otherwise than for the purposes of amalgamation or reconstruction of a solvent company) convenes a meeting of its creditors or a proposal is made for a voluntary arrangement within part 1 of the Insolvency Act 1986 or a proposal is made for a composition, scheme or arrangement with (or assignment for the benefit of) its creditors or if the Customer is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or a trustee, receiver, administrative receiver or a similar officer is appointed in respect of all or a part of the business or assets of the Customer or 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 Customer or for the making of an administration order or (where the Customer is established in a country other than the United Kingdom) an event takes place in the territory in which the Customer is established which is similar to any of the foregoing;
(d) the Customer ceases to carry on business or threatens so to do;
‘Third Party’ means a person, partnership, company or any other undertaking not being Security Everywhere or the Customer;
‘Tie In Licence’ means a licence or maintenance fee which is made through or by Security Everywhere or which is organized by Security Everywhere on behalf of the Customer upon which the Managed Supply provided by Security Everywhere to the Customer is dependent;
‘Tie In Licence Fee’ means any licence fee payable to the licensor of a Tie In Licence;
‘Timely Manner’ means in a timely manner and in any event in accordance with any timetable in a Choice of Service or otherwise agreed between the Parties;
‘Total Fee’ means the total fee indicated as payable for the supply and management of the security services and associated services (if any) identified in the Choice of Service, which fee may consist of a recurring and a non-recurring element;
‘User’ means a user of the Managed Supply, who is granted access to the Managed Supply by or the Customer;
‘Variable’ means, in respect of a service within the Choice of Service, the variable by which that service is charged which variable may be by way of example the number of Users; the number of licensed mailboxes or the number of licensed personal computers;
‘Year’ means a calendar year commencing on the Commencement Date or an anniversary thereof.
1.2 In these Terms and Conditions:
1.2.1 a reference to a particular law is a reference to that law as it is in force from time to time, taking account of any amendment, extension, application or re-enactment of it, and includes any subordinate legislation for the time being in force made under it;
1.2.2 words in the singular include the plural and in the plural include the singular;
1.2.3 a reference to one gender includes a reference to all the other genders;
1.2.4 the Clause headings shall not affect the interpretation of this Agreement;
1.2.5 a reference to writing or related expressions includes a reference to email or other means of electronic communication between the Parties;
1.2.6 an obligation in this Agreement on a person not to do something includes an obligation not to agree, allow, permit or acquiesce in that thing being done;
1.2.7 references to “including” and “includes” mean respectively “including without limitation” and “includes without limitation”;
1.2.8 where an example is included, the use of the example shall not be interpreted as reducing the interpretation of the general words in respect of which the example is given;
1.2.9 references to “content” include any kind of text, information, image, audio or video material which can be incorporated in a website for access by a visitor to that website;
1.2.10 where any consent is to be given by Security Everywhere under this Agreement or pursuant to any Choice of Service, Security Everywhere shall be entitled to give or withhold that consent at the absolute discretion of Security Everywhere;
1.2.11 save where otherwise indicated where any discretion or determination is to be exercised by Security Everywhere under this Agreement or pursuant to any Choice of Service, Security Everywhere shall be entitled to exercise that discretion or determination in the absolute discretion of Security Everywhere; and
1.2.12 save where otherwise indicated where any matter is to be specified by Security Everywhere under this Agreement or pursuant to any Choice of Service, Security Everywhere shall be entitled to specify that matter in the absolute discretion of Security Everywhere.
1.3 In the event of any conflict between the provisions of these Terms and Conditions and the provisions of a Choice of Service, the provisions of these Terms and Conditions shall prevail.
2.1 Each Party warrants to the other that it has full power and authority to enter into and perform the obligations imposed upon that Party under this Agreement.
2.2 This Agreement shall commence on the Commencement Date and shall continue for the Initial Period and thereafter until terminated at an earlier date in accordance with the provisions of this Agreement.
2.3 A Choice of Service shall always be regarded as being made subject to and in accordance with the provisions of this Agreement.
2.4 These Terms and Conditions apply to each Choice of Service and to any offer by Security Everywhere to supply security services and associated services to the Customer to the exclusion of any other terms and conditions which the Customer seeks to impose or incorporate, or which are implied by trade, custom or practice. The Customer acknowledges that this Agreement and the Choice of Service shall prevail over any qualification, term or condition purported to be imposed by the Customer (whether in its sales documentation, invoice or elsewhere) (and whether purported to be imposed now or at a later point in time) and any previous course of dealing between the Customer and Security Everywhere.
2.5 This Agreement and the relevant Choice of Service shall govern the overall relationship of the Parties with respect to the provision of security services and associated services by Security Everywhere to the Customer.
3. Scope of the Managed Supply
3.1 The scope of the Managed Supply and the delivery of security services and associated services (if any) is more particularly set out in a Choice of Service. Security Everywhere shall supply the services identified from time to time in the Choice of Service.
3.2 Security Everywhere shall, in accordance with this Agreement and a Choice of Service and in return for payment of the Total Fee develop and deliver the security services and associated services (if any) identified the relevant Choice of Service.
3.3 All dates supplied by Security Everywhere for the configuration and provision of any security services and the Managed Supply shall be treated as being approximate only. Security Everywhere shall not be liable for any delay howsoever arising if such dates are not complied with or met. No liability shall accrue to Security Everywhere for any delay howsoever arising in the provision of the Managed Supply or the Support Services.
3.4 Subject to Clause 3.3 above, Security Everywhere shall use its reasonable endeavours subject to its other contractual commitments from time to time prevailing and to the availability of goods and personnel to comply with any timetable and delivery dates provided by Security Everywhere to the Customer.
3.5 For the avoidance of doubt, where the provision of any goods or services (including without limitation any hardware or software) is not expressly included in any Choice of Service, Security Everywhere shall be under no obligation to provide those goods or services, although Security Everywhere may agree to do so as an Additional Service in accordance with Clause 9, for which Security Everywhere shall be entitled to levy Additional Charges.
4. Customer Responsibilities
4.1 The Customer acknowledges that Security Everywhere’s ability to determine the Customer’s requirements for and to provide the Managed Supply is dependent upon the full co-operation of the Customer in a Timely Manner (which the Customer agrees to provide), as well as the accuracy and completeness of the information and data the Customer provides to Security Everywhere.
4.2 The Customer shall:
4.2.1 in a Timely Manner provide Security Everywhere with access to, and use of, all information, data and documentation reasonably required by Security Everywhere for the performance by Security Everywhere of its obligations under this Agreement and the Choice of Service; and
4.2.2 deal with all reasonable instructions from Security Everywhere in a Timely Manner when requested.
5.1 For the avoidance of doubt a Choice of Service may be created by automated means on Security Everywhere’s website or be created in a formal quotation document created by Security Everywhere.
6.1 Security Everywhere warrants that it shall perform the Managed Supply and any other services supplied pursuant to or as an adjunct to this Agreement with reasonable care and skill.
6.2 Security Everywhere warrants that it shall deliver the Managed Supply in accordance with the relevant Choice of Service in all substantial respects.
6.3 If Security Everywhere fails to deliver the Managed Supply in accordance with the relevant Choice of Service in all substantial respects (a “Failure”), Security Everywhere’s sole obligation shall be to carry out any work necessary in order to ensure that the Managed Supply does comply with or is in accordance with the relevant Choice of Service in all substantial respects.
6.4 Without prejudice to the provisions of Clause 26.2, the warranty set out in Clause 6.2 shall not apply to the extent that any Failure is caused by any security product, material or content provided by or any work carried out or any change in the Managed Supply made by the Customer or by a Third Party (including without limitation a Third Party who is a supplier of security services to Security Everywhere). In these circumstances, Security Everywhere’s sole obligation shall be to use its reasonable endeavours to pass on to the Customer the benefit of any warranty or guarantee given to Security Everywhere by the relevant Third Party.
7.1 Where implementation services are provided by Security Everywhere, the Customer shall in a Timely Manner provide Security Everywhere with access to, and use of the Customer’s computer systems reasonably required by Security Everywhere to enable Security Everywhere to provide the Managed Supply.
8 Customer Representative
8.1 Where so requested by Security Everywhere, the Customer shall appoint one or more Representatives who shall be authorised to make decisions in connection with this Agreement, the Choice of Service and the Managed Supply on behalf of the Customer. The said Representative shall act as a point of contact and be responsible for liaising with Security Everywhere about the Managed Supply and any ancillary matter.
9. Change of Choice of Service
9.1 The Customer may change an aspect of the Managed Supply or a Choice of Service by adding or subtracting a service or by increasing or decreasing the relevant Variable for a service at any time provided that where the Term exceeds one month the Customer may not remove an aspect of the Managed Supply or a Choice of Service by subtracting a service or decrease a relevant Variable for a service until a Monthly Renewal Date on or after the expiry of the Term.
9.2 Without prejudice to the provisions of Clause 9.1, Security Everywhere shall determine the charges on a month by month basis, and calculate the same using the Variable actually consumed by the Customer for that month for each service within the Choice of Service.
11.6 Unless otherwise stated, the Customer shall pay to Security Everywhere the sums set out in each invoice within thirty (30) days of the date of the invoice. Without prejudice to the foregoing and as a condition precedent to the supply of the Managed Service, Security Everywhere requires the Customer to enter into a bank direct debit, credit card or debit card arrangement before supplying the Managed Supply.
11.7 Security Everywhere shall be entitled to charge simple interest to the Customer on any sums, fees or other charges payable pursuant to this Agreement or Choice of Service which are not paid on the due date and any such interest shall be charged (as well after as before a judgment) at the rate of four per cent (4%) per annum above the base rate of Barclays Bank plc from time to time subsisting: such interest to accrue on a daily basis.
11.8 If the Customer fails to pay any of the Total Fee on the due date or does not comply with an obligation imposed upon the Customer under this Agreement or a Choice of Service or where a Termination Event occurs then, without prejudice to any other right or remedy available to Security Everywhere, Security Everywhere shall be entitled to:
11.8.1 withhold the supply of the Managed Supply and any services to be provided to the Customer by or on behalf of Security Everywhere until such payment is made;
11.8.2 suspend the performance of any obligation owed by Security Everywhere under this Agreement or a Choice of Service until such payment is made; and
11.8.3 require payment in full in advance by the Customer for the provision of the continued Managed Supply and any other services which Security Everywhere agrees to supply before supplying the same.
11.9 The Customer shall not be entitled to make a set-off or counter-claim or claim a lien in respect of any monies owed by the Customer and shall pay all amounts due to Security Everywhere under or further to this Agreement Choice of Service without making a deduction of any kind.
11.10 Without prejudice to any other right or remedy, Security Everywhere can levy reasonable charges on the Customer where the Customer fails to pay any sums, fees or other charges payable pursuant to this Agreement on the due date.
12. Support Services
12.1 Subject to the payment by the Customer to Security Everywhere of the , Security Everywhere shall provide the Customer with the Support Services set out in Clause 12.2.
12.2 During the term of this Agreement and in consideration of the fees payable pursuant to this Agreement and the Choice of Service continuing to be paid by the Customer to Security Everywhere, Security Everywhere shall:
12.2.1 use reasonable endeavours to provide work-arounds in respect of faults appearing in the Managed Supply;
12.2.2 use reasonable endeavours to rectify failures in the Managed Supply; and
12.2.3 provide a telephone help-desk and an email mechanism to assist with the rectification of faults during the Standard Support Hours.
12.3 The obligations contained in Clause 12.2 above shall not apply if any fault or failure is caused by (i) the use of the Managed Supply contrary to Security Everywhere’s instructions or for a purpose for which it was not designed, or (ii) the use of any software contrary to the licensor’s instructions or (iii) due to modification or alteration of the Proprietary Software by any person other than the licensor or a contractor or agent duly authorised by the licensor or (iv) the failure or unavailability (including without limitation planned maintenance) of a Third Party computer related system used by the Customer and with which the Managed Supply is dependent. Where Security Everywhere undertakes work towards the investigation or rectification of a fault or failure in such circumstances, Security Everywhere shall be entitled to levy Additional Charges on the Customer for the same.
12.4 This Clause 12.4 shall apply to the extent that the Managed Supply is dependent upon any Proprietary Software or any other Third Party software or services including any open source software. Save as provided for in Clauses 12.2 and 12.3, where Security Everywhere determines that a fault with the Managed Supply or the Support Services reported by the Customer is due to a fault with or the unavailability of such Third Party software or services (including without limitation planned and unplanned maintenance by the Third Party of that Third Party software or services) (in any such case, a “Third Party Fault”), Security Everywhere shall be entitled to levy Additional Charges on the Customer for any work undertaken by Security Everywhere associated with that determination and any associated rectification of that Third Party Fault.
12.5 The Customer shall promptly report all faults in the Managed Supply or which are covered by the Support Services of which the Customer becomes aware.
12.6 Notwithstanding the provisions set out elsewhere in this Agreement or a Choice of Service, Security Everywhere:
12.6.1 does not warrant that the Customer’s use of the Managed Supply and any software (including the Proprietary Software) will be uninterrupted or error-free;
12.6.2 is not responsible for any delays, delivery failures, downtime, connection speeds, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Managed Supply and any other service provided by Security Everywhere that require an internet connection may be subject to limitations, delays and other problems inherent in the use of such communications networks and facilities; and
12.6.3 is not responsible for the Customer’s internet connectivity, bandwidth or speed of connection with the internet and the Customer is solely responsible for the same.
12.7 Where an upgrade of the Managed Supply is available, Security Everywhere shall use reasonable endeavours to make that upgrade available as soon as reasonably practicable. The upgrade may be delivered to licensed personal computer of the Customer when the same is first logged in to the Managed Supply after Security Everywhere has made the upgrade available.
12.8 Security Everywhere shall not be responsible for the supply, licence and continuing compatibility of the Third Party software used by the Customer and residing on the licensed personal computer of the Customer with which the Managed Supply operates including the relevant operating system software used by the Customer.
12.9 Where any training is to be provided by Security Everywhere, that shall be as so specified in a Choice of Service.
13. Security Measures
Security Everywhere provides appropriate technical and organisational measures and procedures regarding the security of the Customer Data. Where the Customer wishes Security Everywhere to provide greater measures and procedures than the foregoing, Security Everywhere shall, where it is reasonably able to do so and following the Customer’s express written request, provide those greater measures and procedures, for which Security Everywhere may levy Additional Charges.
14. Customer Obligations
14.1 The Customer is solely responsible for:
14.1.1 any device, hardware or telecommunications facility or link and for keeping the same in good working order;
14.1.2 ensuring that the Managed Supply as described in each Choice of Service meets the needs of the Customer’s business; and
14.1.3 procuring and maintaining the network connections and links from its systems to the internet;
14.1.4 the connectivity via the internet to Security Everywhere’s suppliers;
14.1.5 rectification of all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to bandwidth, network connections or telecommunications links; and
14.1.6 rectification of all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the internet or lack of connectivity with the internet.
14.2 The Customer shall:
14.2.1 grant Security Everywhere all necessary access to such information, data and internet connectivity as may be required by Security Everywhere in order to provide the Managed Supply;
14.2.2 comply with all applicable laws and regulations with respect to its activities under this Agreement and the Choice of Service and follow all lawful and reasonable instructions and directions given by Security Everywhere from time to time in relation to the use of the Managed Supply;
14.2.3 ensure that its network and systems comply with the reasonable specifications provided by Security Everywhere from time to time;
14.2.4 it notifies Security Everywhere as soon as it becomes aware of the Managed Supply or the Software not operating correctly; and
14.2.5 where relevant, co-operates with and provides facilities to Security Everywhere as required by Security Everywhere so as to enable Security Everywhere to perform the Managed Supply and the Support Services remotely.
14.3 Where Security Everywhere, or its staff or subcontractors are delayed or impeded or obliged to spend additional time or incur additional expenses in the performance of any of Security Everywhere’s obligations under this Agreement or a Choice of Service by reason of an act or omission of the Customer or any staff, subcontractors or Users of the Customer, then the Customer shall pay Security Everywhere Additional Charges incurred by Security Everywhere and any timetable agreed for the performance by Security Everywhere of any of its obligations may be extended accordingly by Security Everywhere, acting reasonably.
15. Customer Data and Data Protection
15.1 The Customer shall own all rights, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data and for ensuring that the Customer Data does not contain Objectionable material or content.
15.2 The Customer is independently able to maintain multiple back-ups of the Customer Data and accordingly the Customer is solely responsible for the number, location, type and frequency of the back-ups of the Customer Data to be held by the Customer.
15.3 Notwithstanding the provisions of Clause 15.2, Security Everywhere will use its reasonable endeavours to ensure that the relevant Third Party supplier of Security Everywhere provides the back-up service where Security Everywhere has agreed to supply the same as part of the Customer’s Choice of Service.
15.4 In the event of any loss or damage to Customer Data, Security Everywhere shall, at the request of the Customer, use reasonable endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data available to Security Everywhere. Security Everywhere shall be entitled to levy Additional Charges for so doing.
15.5 Where Security Everywhere processes any Personal Data on the Customer’s behalf when performing its obligations under this Agreement or a Choice of Service, the Parties record their intention that the Customer shall be the Data Controller and Security Everywhere shall be the Data Processor and in any such case:
15.5.1 the Customer shall ensure that the Customer is entitled to transfer the relevant Personal Data to Security Everywhere so that Security Everywhere may lawfully process and transfer the Personal Data in accordance with this Agreement on the Customer’s behalf;
15.5.2 Security Everywhere shall process the Personal Data only in accordance with the terms of this Agreement and any written lawful and reasonable instructions given by the Customer from time to time; and
15.5.3 each Party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the Personal Data as required by the Data Protection Legislation.
16. Managed Supply
16.1 Notwithstanding the provisions of Clause 9, Security Everywhere shall be entitled, in its sole discretion, to alter, improve or otherwise modify the Managed Supply at any time provided that any such change shall not be detrimental to the Customer to a significant extent.
16.2 Where the Customer informs Security Everywhere that the Managed Supply is unavailable, Security Everywhere shall, to the extent that Security Everywhere is responsible for the unavailability as soon as reasonably practicable restore the provision of the Managed Supply.
16.3 Where the Managed Supply is unavailable or interrupted through the fault of any Third Party or because of any change in Third Party hardware, software or systems with which the Managed Supply is reliant or interacts, Security Everywhere shall bear no responsibility or liability, but shall at the Customer’s request and expense use Security Everywhere’s reasonable endeavours to assist in recovering the availability of the Managed Supply and to restore it to an operable state, as Additional Services for which Security Everywhere shall be entitled to levy Additional Charges.
17. Customer Staff
17.1 Security Everywhere reserves the right to refuse to provide the Managed Supply or any Maintenance Services to the Customer, if in Security Everywhere’s reasonable opinion any member of staff or subcontractor of the Customer or a User is abusive to Security Everywhere’s staff or subcontractors.
18.1 In this Clause 18, ‘Confidential Information’ means all information, whether technical or commercial (including this Agreement and the Choice of Service and whether disclosed in writing, on disc, orally or by inspection between the Parties), where the information is:
18.1.1 identified as confidential at the time of disclosure; or
18.1.2 ought reasonably to be considered confidential given the nature of the information or the circumstances of disclosure.
Notwithstanding the above, Confidential Information includes in the case of information belonging to Security Everywhere (or, as the case may be the licensor of the Proprietary Software), information as to the operation of the business of Security Everywhere and information relating to the Source Code and structure of the Managed Supply and any Proprietary Software.
18.2 Each Party shall protect the Confidential Information of the other Party against unauthorised disclosure by using the same degree of care as it takes to preserve and safeguard its own confidential information of a similar nature, being at least a reasonable degree of care.
18.3 Confidential Information may be disclosed by the receiving Party to its employees, affiliates and professional advisers, provided that the receiving Party ensures that the recipient employee, affiliate or professional adviser is bound in writing to maintain the confidentiality of the Confidential Information received.
18.4 The obligations set out in this Clause 18 shall not apply to Confidential Information which the receiving Party can demonstrate:
18.4.1 is or has become publicly known other than through breach of this Clause 18;
18.4.2 was in possession of the receiving Party prior to disclosure by the other Party;
18.4.3 was received by the receiving Party from a Third Party who has full right of disclosure;
18.4.4 is required to be disclosed by a governmental authority or regulatory body, provided that the Party subject to such requirement to disclose gives the other Party written notice of the requirement as soon as reasonably possible.
19. Limitation of Remedies and Liability
19.1 Save as expressly provided in this Agreement or a Choice of Service to the contrary all terms, conditions and warranties imposed on Security Everywhere and implied by statute, common law or otherwise howsoever arising and relating to the Managed Supply, the Support Services or any other services supplied pursuant to this Agreement or a Choice of Service are excluded to the maximum extent permissible by law.
19.2 Security Everywhere’s charges to the Customer are determined on the basis of the exclusions from and limitations of liability contained in this Agreement and the Choice of Service. The Customer expressly agrees that these exclusions and limitations are reasonable because of (amongst other matters) the possibility that otherwise the amount of damages awardable to the Customer for a breach by Security Everywhere of this Agreement or a Choice of Service may be disproportionately greater than the price of the Managed Supply.
Security Everywhere is willing to arrange for additional insurance cover to enable Security Everywhere to take on the burden of additional liability to the Customer provided that the Customer pays Security Everywhere a commensurately higher price for the Managed Supply. If the Customer wishes Security Everywhere to obtain a quotation for such additional insurance cover the Customer shall notify Security Everywhere accordingly prior to this Agreement or the relevant Choice of Service being entered into.
19.3 The following provisions in this Clause 19 set out Security Everywhere’s entire liability (including any liability for the acts and omissions of its employees, agents or sub-contractors) to the Customer in respect of:
19.3.1 a breach of Security Everywhere’s contractual obligations
19.3.2 a tortious act or omission for which Security Everywhere is liable; or
19.3.3 an action arising out of a misrepresentation by or on behalf of Security Everywhere;
arising in connection with the performance or contemplated performance of this Agreement or a Choice of Service or out of an act done or omission made as a consequence of the entry into by Security Everywhere of this Agreement or a Choice of Service.
19.4 The total liability which Security Everywhere shall owe to the Customer and in respect of all claims howsoever arising shall not exceed the sum of one million pounds (£1,000,000).
19.5 Where the claim from the Customer and a claim from one or more other customers of Security Everywhere is attributable to the same act, error or omission or series of acts, errors or omissions consequent upon or attributable to the same original cause, the total liability which Security Everywhere shall owe to the Customer and in respect of all claims howsoever arising shall not exceed the sum of one million pounds (£1,000,000) divided by N + 1. In the previous sentence, “N” means the number of other customers making a claim against Security Everywhere where the claim is attributable to the same act, error or omission or series of acts, errors or omissions consequent upon or attributable to the same original cause of the claim brought by the Customer. Where this Clause 19.5 applies, this limitation shall supercede the limitation stated in Clause 19.4 above.
19.6 Security Everywhere shall in no circumstances be liable to the Customer for any Consequential Loss, howsoever arising. Security Everywhere shall in no circumstances be liable to the Customer for any wasted expenditure, howsoever arising.
19.7 Security Everywhere shall in no circumstances be liable to the Customer for any indirect loss, howsoever arising.
19.8 Save in respect of a breach of the provisions of Clause 15.3, Security Everywhere shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data, howsoever arising.
19.9 The Customer shall only be entitled to bring a claim against Security Everywhere where the Customer issues legal proceedings against Security Everywhere within the period of twenty four (24) months commencing on the date upon which the Customer ought reasonably to have known of its entitlement to bring such a claim.
19.10 The exclusions from and limitations of liability referred to in this Clause 19 do not apply so as to exclude or limit Security Everywhere’s liability to the Customer for:
19.10.1 death or personal injury resulting from the negligence of Security Everywhere, its employees, agents or sub-contractors;
19.10.2 breach of Security Everywhere’s implied undertaking (if any) as to title or the warranty (if any) as to quiet possession implied by law or statute;
19.10.3 damage for which Security Everywhere is liable to the Customer under part I of the Consumer Protection Act 1987 where the Customer acts as a consumer pursuant to that Act; or
save that nothing in this Clause 19 shall confer a right or remedy upon the Customer to which the Customer would not otherwise be entitled.
19.11 The exclusions from and limitations of liability set out in this Clause 19 shall be considered severably. The invalidity or unenforceability of any part of this Clause 19 shall not affect the validity or enforceability of any other part of this Clause 19.
20.1 Security Everywhere shall be entitled to terminate such or all of the Choice of Service as Security Everywhere may specify at any time by giving not less than thirty (30) days notice so to do.
20.2 The Customer shall be entitled to terminate this Agreement together with all Choice of Service at any time by giving not less than one month’s notice so to do: provided always that such notice shall be expressed to take effect on a Monthly Renewal Date and provided further that where the Term exceeds one month the Customer may not terminate this Agreement until a Monthly Renewal Date on or after the expiry of the Term.
20.3 Where a Termination Event occurs, Security Everywhere may by written notice given to the Customer at any time thereafter, terminate this Agreement (together with such or all of the Choice of Service as Security Everywhere may specify).
21. Consequences of Termination
21.1 Any termination of this Agreement or a Choice of Service shall be without prejudice to the rights, duties and remedies of either Party accrued prior to termination or to the to the rights, duties and remedies of either Party in respect of a non-terminating Choice of Service (including the right for Security Everywhere to be paid for any work done to the date of termination on a quantum meruit basis).
21.2 The following provisions shall survive any termination, however arising, of this Agreement: Clauses 1, 2, 4, 5.8, 6.3, 6.4, 8, 10, 11, 14, 15.1, 15.2, 17 to 31 (inclusive).
21.3 On any termination of this Agreement or any relevant Choice of Service, however arising, (i) Security Everywhere shall use reasonable efforts to terminate any Tie In Licence on the earliest date on which Security Everywhere is reasonably able to do so without a penalty and (ii) the Customer shall be immediately liable to pay Security Everywhere for the balance of any Tie In Licence Fees for the use of the Tie In Licence payable until such date. For the avoidance of doubt, such obligation to pay shall subsist irrespective of whether the Customer intends to continue to use the Tie In Licence.
21.4 The Customers licence to use the Managed Supply and all associated licences shall terminate forthwith upon any termination however arising of this Agreement or the relevant Choice of Service under which the Managed Supply is supplied.
22. Force Majeure
22.1 Any delay in or failure of performance of any obligation by either Party (save an obligation in respect of the payment of monies) shall not constitute a breach of such obligation but only to the extent that such a delay or failure is caused by an event which is not within the reasonable control of the Party otherwise in default and which such Party is unable to prevent or to circumvent by the exercise of reasonable diligence including without limitation an event such as a war, riot, civil commotion, fire, flood, earthquake, epidemic, inability or delay in obtaining supplies of adequate or suitable materials, strike, lock-out or other industrial action or trade dispute (whether or not involving the work force or a part of the work force of the Party otherwise in default).
22.2 The Party otherwise in default shall (a) take and continue to take all reasonable steps to circumvent and mitigate the effect of such event and to reduce any delay in the performance of such obligation and (b) give notice to the other Party of such event as soon as reasonably practicable.
23.1 All notices between the Parties relating to this Agreement or a Choice of Service shall be in writing and may be sent by pre-paid first class post, express air mail or by email.
23.2 All such notices shall be deemed to have been served:
23.2.1 if sent by pre-paid first class post, two Business Days after posting (exclusive of the day of posting);
23.2.2 if sent by pre-paid air mail post shall be deemed to be served on the seventh day following the day of posting; or
23.2.3 if sent by email on a Business Day prior to 5.00 p.m., at the time of error-free transmission and if after 5.00 p.m. on the next Business Day after error-free transmission.
23.3 Any notice for Security Everywhere may be addressed to its registered office at the relevant time or to the following email address: email@example.com. Any notice to the Customer may be addressed in the case of a company, sole trader or partnership to its registered office, principal place of business or its address stated in this Agreement or to the email address which has been used by the Customer for most of its prior e-mail correspondence with Security Everywhere (or such other address or e-mail as may have been notified in writing by the Customer expressly for such purpose from time to time).
24.1 Notwithstanding the provisions of Clause 18, Security Everywhere may, acting reasonably, publicise the existence of this Agreement or a Choice of Service.
25. Dispute Resolution Procedure
25.1 If a dispute arises out of or in connection with this Agreement or a Choice of Service or the performance, validity or enforceability of it (a “Dispute”) then the Parties shall follow the dispute resolution procedure set out in this Clause 25.
25.2 Either Party shall give to the other written notice of the Dispute, setting out its nature and reasonable particulars (a “Dispute Notice”), together with reasonable supporting documentation. On service of the Dispute Notice, a director of Security Everywhere and the Representative shall attempt in good faith to resolve the Dispute.
25.3 If the persons appointed in accordance with Clause 25.2 are for any reason unable to resolve the Dispute within thirty (30) days of service of the Dispute Notice, the Dispute shall be referred to, a director of Security Everywhere and a director of the Customer in attempt in good faith to resolve it.
25.4 If the persons appointed in accordance with Clause 25.3 are for any reason unable to resolve the Dispute within thirty (30) days of it being referred to them, either Party shall be entitled to take such further steps as it considers appropriate to resolve the Dispute, including the initiation of court proceedings.
26 Assignment and Sub-Contracting
26.1 Neither Party may assign or transfer any of its rights or obligations under this Agreement or a Choice of Service without the prior written consent of other Party, such consent not to be unreasonably withheld or delayed. Security Everywhere shall be free to assign the whole of this Agreement or a Choice of Service as part of the transfer of the whole or a substantial part of its business.
26.2 Security Everywhere shall be free to sub-contract its rights and obligations under this Agreement or a Choice of Service as it in its discretion sees fit, subject to any appointed sub-contractor entering into provisions relating to confidentiality and data protection with Security Everywhere which are no less onerous than the provisions set out in this Agreement and the relevant Choice of Service. Security Everywhere shall be liable to the Customer for the acts and omissions of its sub-contractors.
27 Entire Agreement
27.1 This Agreement together with the Choice of Service and any other documents referred to in them constitutes the entire agreement between the Parties regarding its subject matter and supersedes and replaces any and all prior agreements, understandings or arrangements between the Parties, whether oral or in writing, with respect to the same.
27.2 The Parties acknowledge that in entering into this Agreement and the Choice of Service they have not relied upon any representations other than those reduced to writing in this Agreement or the Choice of Service. The provisions of this Clause 27.2 shall not apply to any fraudulent misrepresentation.
28. Third Party Rights
28.1 A Third Party who is not a Party to this Agreement or a Choice of Service shall have no right under the Contract (Rights of Third Parties) Act 1999 to enforce any provision of this Agreement or a Choice of Service.
29. Variation and Waiver
29.1 No amendment of this Agreement or a Choice of Service shall be binding unless executed in writing and signed by an authorised representative of Security Everywhere and by an authorised representative of the Customer.
29.2 Unless specifically provided otherwise, rights arising under this Agreement are cumulative and do not exclude rights provided by law.
29.3 Save in respect of a waiver recorded in writing, the failure of either Party at any time to enforce a provision of this Agreement shall not be deemed a waiver of such provision or of any other provision of this Agreement or of such Party’s right thereafter to enforce that or any provision of this Agreement.
30.1 The illegality, invalidity or unenforceability of any Clause of this Agreement will not affect the legality, validity or enforceability of the remainder. If any such Clause is found by any competent court or authority to be illegal, invalid or unenforceable the Parties agree that they will substitute provisions in a form as similar to the offending provisions as is possible without thereby rendering them illegal, invalid or unenforceable.
31. Governing Law and Jurisdiction
31.1 This Agreement and all the Choice of Service and any disputes or claims arising out of or in connection with them or their subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England.
31.2 The Parties irrevocably agree that the Courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement and all the Choice of Service or its subject matter or formation (including non-contractual disputes or claims howsoever arising).