Terms & Conditions
BY SIGNING AN ORDER REFERENCING THESE TERMS AND CONDITIONS OR USING ANY SERVICES PROVIDED BY HARWOOD BRITTAIN TECHNOLOGY LIMITED, THE CUSTOMER ACCEPTS ALL OF THE FOLLOWING TERMS.
These terms and conditions together with an Order (“the agreement”) is made by and between Harwood Brittain Technology Limited, registered company number 09547933, having its registered office at 5 Sleepy Hollow Business Park, Ampfield Hill, Ampfield, Romsey, Hampshire, SO51 9AW (“HB Tech”) and the Customer listed in the Order (as defined below). This agreement will govern the use and provision of the Managed Services (as defined below) purchased by the Customer as described in the Order. Any terms not defined herein have the meaning given to them in the applicable Order. HB Tech and the Customer may each be referred to as a “Party” and collectively as the “Parties.” The Parties enter into this agreement as of the effective date set out in the Order (the “Effective Date”).
“Business Contact Information” means the business contact information of an employee or contractor of HB Tech or the Customer, which may include, name, business title, business phone number, business email address, and business office address.
“Confidential Information” means all non-public information disclosed by a Party (“Discloser”) to the other Party (“Recipient”), whether disclosed orally or in writing, that is designated confidential or should be reasonably known by the Recipient to be confidential given the nature of the information or the circumstances of the disclosure. Confidential Information does not include any information that: (i) was rightfully known to Recipient prior to disclosure by Discloser without breach of any obligation owed to Discloser; (ii) is or becomes public knowledge without breach of any obligation owed to Discloser; (iii) is lawfully received from a third-party without breach of any obligation owed to Discloser; or (iv) is independently developed by the Recipient without use of or reference to the Discloser’s Confidential Information.
“Customer Data” means all data and information submitted by or on behalf of the Customer into the Customer’s business systems or created by the Customer during the delivery of the Managed Services, and any modifications made thereto in the course of the performance of the Managed Services by HB Tech.
“Deliverables” means any hardware, equipment, or tangible or non-tangible work product(s) provided by HB Tech in connection with the provision of the Managed Services and which are specified in the Order.
“Documentation” means Microsoft’s then-current technical documentation, specifications, and user manuals for the Managed Services where such Microsoft documentation is made available by Microsoft.
“Fees” means the fees payable by the Customer for the Managed Services, as set out in an Order.
“HB Tech Third-Party Applications” means any applications, products, services, or content that are used in connection with the Managed Services, which are provided by HB Tech from a third-party (such as Microsoft) and which are licensed or made available (i) as a cloud-based hosted solution or (ii) as licensed software products installed onto the Customer’s servers or other hardware where the Customer uses a legacy system.
“Managed Services” means the professional managed technology services delivered by or on behalf of HB Tech to the Customer as described in an Order, including the supply of HB Tech Third Party Applications, the Deliverables, any implementation or integration services, training, support and maintenance and/or consulting services.
“Order” means the ordering document executed by both Parties or an accepted quotation which references or includes this agreement and specifies the Managed Services to be made available and the Fees to be paid.
“Updates” means updates, releases, patches, and fixes of software that are made generally available by HB Tech at no additional charge; provided that Updates do not include add-ons, modules, or other products made available by HB Tech that are ancillary to or separate from any HB Tech Third Party Applications.
“Term” means the period of the Initial Term and any Renewal Term collectively until the agreement expires or is otherwise terminated.
“Use Limits” means any numerical limits on units of measure referenced in the Order, or in any Documentation, or prescribed as part of the HB Tech Third Party Applications, including the number of authorised Users or certain volumes of traffic (operations), or storage.
“User” means any Customer employee or contractor granted access to any part of the Managed Services by the Customer.
2. USE OF SERVICE
2.1 Provision and Access. Subject to this agreement, HB Tech grants the Customer a non-exclusive, non-transferable, and non-sublicensable right for Users to use the HB Tech Third Party Applications and receive all or any components comprising the Managed Services. The rights granted are solely for the Customer’s internal business operations, for use only in accordance with the Documentation and any restrictions set forth on the Order (including any Use Limits). The Customer shall be fully responsible for each User’s compliance with this agreement.
2.2 User IDs, Passwords. HB Tech will provide the Customer with log-in IDs, initial passwords and/or authorisation keys (“Log-Ins”) each User needs to use the Managed Services. The Customer agrees to be solely responsible for safeguarding the Log-Ins, complying with good industry practice in doing so and observing the password and security procedures HB Tech recommends from time to time.
2.3 Technical Environment. The Customer will acquire, install and maintain throughout the Term the hardware, software, Internet access and systems meeting HB Tech’s minimum specifications. The Customer is responsible for obtaining and maintaining all computer hardware, software and communications equipment which HB Tech recommends and advises is required to:
- optimise the use of the Managed Services;
- secure the Customer Data; and
- maintain the integrity and reliability of all software applications being managed under the Managed Services, including any HB Tech Third Party Applications;
and HB Tech shall not be liable for any failure by the Customer to (i) implement any HB Tech advice to enable the maximum functionality to be achieved by any software under the Managed Services or (ii) introduce measures recommended by HB Tech to secure the Customer’s systems and Customer Data.
2.4 Third-Party Applications. The Customer is solely responsible for obtaining and maintaining access to any third-party applications which are not provided by HB Tech. HB Tech is not liable to the Customer and shall not need to provide the Customer with any refund, credit, or other compensation for any errors, delays, downtime, or nonperformance of the Managed Services caused by the unavailability of any HB Tech Third-Party Application, or if Customer terminates its subscription or license to the HB Tech Third-Party Application or requests that the HB Tech Third-Party Application is terminated by HB Tech on the Customer’s behalf.
2.5 General Restrictions. The Customer will not: (a) sell, rent, lease, license, distribute, provide direct access to, sublicense, or otherwise make available the Managed Services or any HB Tech Third Party Application (or any Deliverables, if applicable) to a third-party (b) introduce into any HB Tech Third Party Application any virus, worm, “back door,” Trojan Horse, or similar harmful code; or (c) use the Managed Services or any HB Tech Third Party Application to process or send spam or engage in other unlawful communications, or to process infringing or otherwise unlawful or unauthorised Customer Data. The Customer agrees to use the Managed Services in accordance with laws, rules and regulations directly applicable to the Customer and its Customer Data. All rights in the Managed Services not expressly granted herein are reserved.
3.1 Rights in Customer Data. As between the Parties, the Customer and its licensors retain all right, title and interest (including any and all intellectual property rights) in and to the Customer Data. Subject to the terms of this agreement, the Customer hereby grants to HB Tech a non-exclusive, worldwide, royalty-free right to access, use, copy, distribute, perform, and display Customer Data, and provide necessary access to third-party service providers acting on HB Tech’s behalf (such as HB Tech’s hosting services provider, Microsoft), solely to the extent necessary to: (a) provide, maintain, and update the Managed Services for the Customer and its Users; (b) address technical issues or in connection with support matters; (c) perform Managed Services ordered by the Customer; (d) comply with applicable law; or (e) as expressly permitted in writing by the Customer.
3.2 Customer Obligations. The Customer will require its Users to keep Log-Ins and password information strictly confidential and not share such information with any unauthorised person. HB Tech will have no liability for actions taken using the Customer’s Log-Ins and passwords, including any unauthorised use or access caused by a breach of the foregoing obligation leading to misuse or misappropriation of such Log-Ins and passwords. In addition, the Customer shall be responsible for any expenses, costs, and losses incurred as a result of a failure of the Customer and/or its Users to keep Log-Ins and password information secure from misuse. The Customer will also be responsible for restricting access by any of its Users who are no longer authorised to access any HB Tech Third Party Applications or the Managed Services. In the event that the Customer becomes aware of any Log-Ins and passwords being shared or compromised, the Customer is obliged to contact HB Tech immediately to enable any remedial action taken by HB Tech, and a failure to contact HB Tech will be a material breach of this agreement.
With respect to Customer Data accessed as part of the Managed Services for processing, HB Tech will maintain commercially reasonable administrative, physical, and technical safeguards designed to prevent unauthorised access to or use of Customer Data.
5. INTELLECTUAL PROPERTY
5.1 HB Tech Technology. The Customer agrees that HB Tech and its suppliers retain all right, title and interest (including all patent, copyright, trademark, trade secret and other intellectual property rights) in and to any technology used to provide or deliver the Managed Services. Except for the express limited rights set forth in this agreement, no right, title or interest in any technology is granted to the Customer.
6.1 The Recipient will use the same degree of care that it uses to protect the confidentiality of its own Confidential Information of like kind (but not less than reasonable care) to: (a) not use any of the Discloser’s Confidential Information for any purpose outside the scope of this agreement, and (b) except as otherwise authorized by the Discloser in writing, limit access to Confidential Information of the Discloser to those of its employees and contractors who need that access for purposes consistent with this agreement and who are bound by confidentiality obligations containing protections not materially less protective of the Confidential Information than those herein. If Recipient is required by law or court order to disclose Confidential Information, then Recipient shall, to the extent legally permitted, provide Discloser with advance written notification and cooperate in any effort to obtain confidential treatment of the Confidential Information.
6.2 Business Contact Information. The Parties hereby acknowledge and agree that the processing of Business Contact Information by the Recipient is incidental. The Parties agree to maintain updated Business Contact Information that is necessary for the continuation of the business relationship (for example, the individual email address to whom invoices are sent).
7. FEES AND PAYMENT; TAXES; PAYMENT DISPUTES
7.1 Fees and Payment. Fees which shall be paid by the Customer, and payment terms will be specified in the applicable Order. If no payment terms are noted on the Order, payment of undisputed Fees by the Customer shall be made within thirty (30) days following receipt of HB Tech’s invoice. Except as expressly stated in this agreement, payment obligations cannot be cancelled, and Fees are non-refundable and payable in GBP.
8. TERM AND TERMINATION
8.1 Term of this agreement. This agreement will commence on the Effective Date and will remain in effect until terminated in accordance with this Section 8.
8.2 Termination for Cause. Either Party may terminate this agreement for cause upon one month’s written notice if the other Party materially breaches this agreement and fails to correct the breach within 30 days from the date such written notice is. Additionally, either Party will be entitled to terminate this agreement immediately upon written notice if the other Party becomes (or is reasonably likely to become) bankrupt, or files a petition in bankruptcy or insolvency or a similar analogous event occurs in respect of the other Party.
8.3 Termination for Convenience. Either party may terminate for convenience on one month’s prior written notice.
8.4 Survival. Any provision of this agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this agreement shall remain in full force and effect.
8.5 Suspension of Service. In addition to any of its other rights or remedies (including, without limitation, any termination rights) set forth in this agreement, HB Tech reserves the right to suspend the Customer’s or any or all of Users’ access to the Managed Services, in whole or in part, if: (a) the Customer is thirty (30) days or more overdue on a payment (excluding amounts disputed in reasonable and good faith), provided HB Tech has given the Customer 10 or more days’ prior notice; (b) HB Tech, acting reasonably and in good faith, deems such suspension necessary as a result of the Customer’s breach of Sections 2.2, 2.3, and 2.5 or Section 3.2 (Customer Obligations); (c) HB Tech, acting reasonably and in good faith, deems such suspension necessary as a result of the Customer substantially exceeding any Use Limits or continuing to exceed Use Limits after HB Tech has given the Customer prior notice of such Use Limits being exceeded; (d) HB Tech reasonably determines suspension is necessary to avoid material harm to HB Tech or its other customers, including if the Managed Services are experiencing denial of service attacks, viruses, security issues, mail flooding, or other attacks or disruptions outside of HB Tech’s control; or (e) as required by law. To the extent reasonably feasible given the nature of the issue giving rise to the suspension HB Tech will (i) notify the Customer in advance of a suspension, (ii) attempt to limit the suspension to the affected Users or functionality, and (iii) immediately restore access to the Managed Services as soon as the issue giving rise to the suspension has been resolved. Without limiting the generality of this Section, HB Tech shall have no liability for any damages, liabilities or losses as a result of any suspension, limitation or termination of the Customer’s right to use the Managed Services pursuant to this Section 8.5.
9.1 Service Warranty. All Managed Services will be performed in a professional and workmanlike manner in accordance with industry standards and the agreed-to specifications in the Order. In the event of a breach of this warranty, HB Tech will use commercially reasonable efforts to correct the reported non-conformity, at no charge to the Customer, or if HB Tech is unable to do so within a reasonable period not to exceed thirty (30) days, either Party may terminate the applicable Order and the Customer will receive a pro-rata refund of any unused Fees that the Customer has pre-paid for the Managed Services. The foregoing shall be the Customer’s sole and exclusive remedy for any breach of the warranty set forth in this Section.
9.2 Warranty flow-down. HB Tech will use reasonable endeavours to flow down the benefit of any warranties given by the original vendors of any Deliverable or any HB Tech Third Party Applications. The Customer acknowledges that HB Tech is unable to give any warranties in excess of those warranties given by such third parties to HB Tech or HB Tech customers.
9.3 HB Tech warrants that it will provide as part of the Managed Services any Updates to the Customer required to maintain the functionality of the HB Tech Third Party Applications or other software being used by the Customer in accordance with their specifications. HB Tech shall be under no obligation to provide the Managed Services for any version of any software that has been superseded by at least two subsequent Updates of such software.
9.4 Warranty Disclaimer. TO THE MAXIMUM PERMITTED BY LAW, AND EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE MANAGED SERVICES ARE PROVIDED “AS IS” AND HB TECH MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NON- INFRINGEMENT. HB TECH DOES NOT WARRANT THAT THE USE OF THE MANAGED SERVICESWILLBEUNINTERRUPTEDORERROR- FREE, NOR DOES HB TECH WARRANT THAT IT WILL REVIEW THE CUSTOMER DATA FOR ACCURACY OR THAT IT WILL PRESERVE OR MAINTAIN THE CUSTOMER DATA WITHOUT LOSS. HB TECH SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR FOR ISSUES RELATED TO THIRD-PARTY PROVIDERS WITH WHOM THE CUSTOMER SEPARATELY CONTRACTS. HB TECH DOES NOT MAKE ANY WARRANTIES AND SHALL HAVE NO OBLIGATIONS WITH RESPECT TO THE HB TECH THIRD-PARTY APPLICATIONS EXCEPT AS OTHERWISE SET OUT IN THIS AGREEMENT.
10. SUPPORT AND AVAILABILITY
During the Term, HB Tech agrees to provide the Customer with the technical support and service levels (collectively, “Support”) in accordance with the support policy attached as Schedule 1. HB Tech accepts no liability for any Support provided where such Support is dependent on third parties such as Microsoft, nor shall HB Tech be liable for any non-availability or failure of any service levels where such service levels and availability are reliant on third party providers. The Customer acknowledges that they may experience a degradation in functionality of certain software or services received from HB Tech where the Customer remains on legacy systems which become difficult to support. HB Tech is entitled without any liability to decline providing support where such support and maintenance of software and systems is in HB Tech’s reasonable opinion, no longer commercially or technically viable.
11.1 Indemnification by Customer. The Customer will defend HB Tech from and against any claim by a third-party arising from or relating to any Customer Data, or any product or service offered by the Customer that is managed, monitored or developed by use of the Managed Services, and will indemnify and hold harmless HB Tech from and against any damages and costs awarded against HB Tech or agreed in settlement by the Customer (including reasonable attorneys’ fees) resulting from such claim.
12. LIMITATION OF REMEDIES AND DAMAGES
12.1 EXCLUSION OF CERTAIN DAMAGES. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY OR TO ANY OTHER PARTY FOR ANY LOST PROFITS OR REVENUES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL LOSSES, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
12.2 LIABILITY CAP. EXCEPT FOR LIABILITY ARISING OUT OF EITHER PARTY’S (I) BREACH OF CONFIDENTIALITY, (II) INDEMNIFICATION OBLIGATIONS, (III) BREACH OF OBLIGATIONS PERTAINING TO CUSTOMER DATA (INCLUDING BUT NOT LIMITED TO, AS A RESULT OF BREACH TO FOLLOW RECOMMENDATIONS FOR SECURITY), (IV) MISAPPROPRIATION, INFRINGEMENT, OR VIOLATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, OR (V) FRAUD OR WILLFUL MISCONDUCT (COLLECTIVELY, THE “EXCLUDED CLAIMS”), IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY RELATING TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY THE CUSTOMER TO HB TECH HEREUNDER IN THE 12 MONTHS PRECEDING THE DATE ON WHICH THE FIRST CLAIM GIVING RISE TO LIABILITY AROSE (THE “GENERAL LIABILITY CAP”).
12.3 EXCLUDED CLAIMS. EXCEPT AS PROVIDED IN THIS SECTION 12.3, UNDER NO CIRCUMSTANCES WILL EITHER PARTY’S AGGREGATE LIABILITY FOR ALL EXCLUDED CLAIMS EXCEED TWO TIMES (2X) THE GENERAL LIABILITY CAP.
12.4 LIMITATION SCOPE. FOR THE AVOIDANCE OF DOUBT, THE EXCLUSIONS AND LIMITATIONS SET FORTH IN THIS SECTION 12 WILL APPLY WITH RESPECT TO ALL LEGAL THEORIES OF LIABILITY, WHETHER IN CONTRACT OR OTHERWISE.
13. GOVERNING LAW: This agreement shall be governed by and construed in accordance with the laws of England and Wales. The Parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of it.
Schedule 1 (Support Policy)
- Responsibilities of HB Tech
1.1 The following are responsibilities of HB Tech:
2 Ensure relevant software, services and equipment are available to the client in line with the service level agreement (SLA) at the end of this document;
3. Respond to support requests within a reasonable time;
4. Do its best to escalate and resolve issues in an appropriate, timely manner;
5. Maintain good communication with the client at all times.
- Responsibilities of the Customer
2.1 The following are responsibilities of the client:
- Notify HB Tech of issues or problems in a timely manner;
- Provide HB Tech with access to equipment, software and services for the purposes of maintenance, updates and fault prevention;
- Keep HB Tech informed about potential changes to its IT system and circumstances;
- Maintain good communication with HB Tech at all times.
3. Service Level Agreement
Target Response Time
|A. Whole Network Unavailable
Within the hour, Onsite if req’d, same day
|B. Key Service Down
Under 1 hour, Onsite if req’d, Same Day or First thing next Working Day
|C. Standard Issue
Under 2 hours, Onsite if req’d, one to two Working Days
|D. Standard Support Call
Under 4 hours, Onsite if req’d, at a mutually convenient time
Last Updated: August 2023