Terms & Conditions

1. Application 

1. These Terms and Conditions shall apply to the provision of IT Services by the Provider to the Customer.  

2. In the event of conflict between these terms and conditions and any other terms and conditions (of the Customer or otherwise), the former shall prevail unless expressly otherwise agreed by the Provider in writing. 

2. Definitions and Interpretations 

1. In these Terms and Conditions, unless the context otherwise requires, the following expressions have the following meanings:  

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2. Any reference in these Terms and Conditions to a statute or a provision of a statute shall be construed as a reference to that statue or provision as amended, re-enacted, or extended at the relevant time. 

3. The headings in these Terms and Conditions are for convenience only and shall not affect their interpretation. 

3. Provider’s obligations 

1. With effect from the Commencement Date the Provider shall, in consideration of the Fees being paid in accordance with the terms of payment (as set out in this Agreement), provide the Services with reasonable skill and care.  

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2. The Provider will, subject to Clause 4, use reasonable endeavours to maintain the functionality of any Software which may be installed or otherwise operative on the Customer’s Equipment and undertakes to re-install any Software which may have been corrupted or otherwise made unavailable due to hardware failure and to render such technical assistance as may be necessary to secure the satisfactory operation of the Equipment and Software.  

3. Upon receipt of the Customer’s request for support or rectification of a defect, the Provider shall (subject to its then current commitments) normally begin work on such support or defect within the specified Service Level Agreement timescales and shall carry out all Services during Working Hours until all required work is completed to the reasonable satisfaction of the Customer. 

4. Customer’s Obligations 

1. The Customer:  

1. shall notify the Provider at the earliest opportunity of any expected changes to or implementations of any IT, connectivity or telecoms-based system(s), that may affect the services and/or products provided by or supported by the Provider. 

2. acknowledges that any work which is required from the Provider relating to any changes/implementations will need to be quoted for in advance. 

3. acknowledges that any changes to the ongoing services the Customer requires to be delivered by the Provider will need to be quoted for in advance. 

4. shall allow the Provider access to the Equipment and all relevant Software for investigation purposes. 

shall provide adequate working space and facilities for the Provider staff and co-operate with them in the diagnosis of any defect or malfunction in the Equipment or Software. 

2. The Customer shall allow the Provider the use of any Equipment, computer systems, peripherals, or other hardware necessary to enable it to provide the Services and shall be responsible for procuring, installing and maintaining all communications media not supplied by the Provider. 

3. The Customer will not allow any changes or modifications to the Software to be made by any party other than those authorised by the Provider.  If such changes or modifications are carried out without authorisation or appropriate notification, the Provider reserves the right to review these Terms and Conditions and adjust them accordingly. 

4. The Customer will make freely available to the Provider all documentation associated with the Equipment, working documents, original Software installation media, current data backups, Equipment, and any other relevant hardware for the efficient maintenance of the Equipment and the Software. 

5. The Customer shall create regular data backups in such a manner as to minimise any potential data loss and to ensure that these are made available to the Provider as required. In the case where backup is monitored by the Provider, the Provider will take all steps necessary and reasonable to maintain regular and successful backups. In the case of offsite backup supplied directly by the Provider, the Provider will manage, monitor, and maintain the regular and successful backups and report failures to the Customer.  

6. The Customer shall take all reasonable precautions to ensure the safety and health of the Provider’s personnel while such personnel are at the Customer’s premises. 

5. General 

1. Failure by either the Provider or Customer at any time to enforce any part of the provisions of this Agreement shall not be construed as a waiver by such party of any such provision or in any way affect the validity of this Agreement or any part of it.  

2. If any provision of this Agreement shall be prohibited or adjudged by a court of competent jurisdiction to be unlawful, void or unenforceable, such provision shall to the extent required be severed from this Agreement and rendered ineffective as far as possible without modifying the remaining provisions of this Agreement and shall not in any way affect any other circumstances or the validity or enforcement of this Agreement. 

3. This Agreement and any other documents referred to in it, constitutes the whole agreement between the parties and replaces and supersedes any previous Agreement, understanding or arrangement between the Provider and Customer relating to the subject matter they cover. Each party acknowledges and agrees that in entering into this Agreement it does not rely on any undertaking, statement, representation, warranty, or understanding (whether in writing or not) of any person relating to the subject matter of this Agreement, other that as expressly set out in this Agreement.  

4. The Provider shall be entitled to amend the Terms and Conditions and/or any service specific conditions at any time and will notify the Customer in writing by email. This Agreement shall be amended accordingly with effect from the date of notification. Save in respect of price changes, if the relevant amendment is not required by law and materially affects the Services, the Customer shall have the right to terminate the relevant services affected by the change serving on the Provider no less than 1 calendar months’ written notice by email to accounts@cloud10.it to terminate the relevant Services, provided that such notice is served within the period of 14 working days commencing on the date of notification. In all other cases, the Customer will be deemed to have accepted the amendment.  

5. The Provider may for operational reasons introduce service features and/or process changes and/or change the way in which the Services are delivered provided such changes do not have a material impact on the performance or provision of the service. 

6. By entering into this Agreement, the Customer confirms that it has read and understood the Providers privacy policy, which can be found at www.cloud10.it/privacy-policy  

6. Price  

1. The Customer agrees to pay the Fees in accordance with Clause 7 and Section 4 (Services (Recurring) & Fees) above.  

2. Following approval, the Provider shall be entitled to recover from the Customer reasonable incidental expenses for materials used and for third party goods and services supplied in connection with the provision of the Services.  

3. Following approval, the Customer shall pay the Provider for any additional services provided by the Provider in accordance with the Provider’s hourly rate in effect at the time of the performance or such other rate as may be agreed. Any such charge for additional services shall be invoiced separately. 

4. All sums payable under this Agreement are exclusive of any value added tax or other applicable sales tax which shall be added to the sum in question at the applicable standard rate. A VAT invoice shall be provided against any payment.  

5. The Provider may increase the Fees for any Services detailed in this Agreement in April (or any replacement month published on The Providers website) each year of the term of this Agreement and any rollover term by the same increase in the Retail Prices Index for the previous 12 months announced by the Office for National Statistics (or successor body).  

6. If the Customer requires any third party licenses as part of the Services and such licenses are provided by the Provider, the Provider shall have the right to pass on to the Customer any increase in the cost of such licenses.  

7. Payment 

1. Payments for any Services detailed in the Agreement required to be made pursuant to these Terms and Conditions by either party shall be made within 30 days of the date of the relevant invoice without any set-off, withholding or deduction except such amount (if any) of tax as that party is required to deduct or withhold by law. 

2. Payment for any product supplied or third party service provided for the Customer shall be paid for within 7 days of the relevant invoice date (or sooner if specified by any invoice due date) without any set-off, withholding or deduction except such amount (if any) of tax as that party is required to deduct or withhold by law. 

3. The time of payment shall be of the essence of these Terms and Conditions.  If the Customer fails to make any payment on the due date in respect of any sum due under these Terms and Conditions, then the Provider shall have the right to charge the Customer interest on any sum outstanding at the rate of 4% above the base rate of Barclays Bank PLC from the due date for payment until the date on which the payment is received.  

8. Suspension of Services 

1. Without prejudice to the parties other rights and remedies under this Agreement and otherwise at law and subject to paragraph 7.1, the Provider may suspend the performance of its obligations under this Agreement on prior written notice to the Customer in the event that: 

1. The Customer has failed to pay the Fees in full by the due date for payment; or 

2. The Provider is required to suspend performance in order to comply with applicable law or request of any governmental department, emergency services organisation or other competent administrative authority provided that if the Provider is entitled to suspend this Agreement pursuant to this paragraph 8.1.2, the Provider shall use its reasonable endeavours to minimise such period of suspension. 

3. In the event of an emergency, the Provider may at its sole discretion interrupt or suspend its obligations hereunder for so long as the emergency lasts (but no longer) without giving any notice to the Customer but shall notify the Customer as soon as reasonably practicable following the start of the interruption or suspension and shall use its reasonable endeavours to minimise the period of such interruption or suspension.  

2. Where the suspension is implemented as a consequence of the breach, fault, act, or omission of the Customer, the Customer shall reimburse the Provider for all reasonable costs and expenses incurred by the Provider in connection with the implementation of such suspension (including reinstatement of any services detailed in the Agreement).  

9. Variation and amendments 

1. If the Customer wishes to vary the specification of the Services, it must notify the Provider in writing as soon as is reasonably possible. The Provider shall use reasonable endeavours to make any required changes and any additional costs thereby incurred shall be separately invoiced to the Customer.  

2. If, due to circumstances beyond the Provider’s control, it must make any change in the arrangements relating to the provision of the Services it shall notify the Customer forthwith. The Provider shall endeavour to keep such changes to a minimum and shall seek to offer the Customer arrangements as close to the original arrangements as is reasonably possible in the circumstances. 

10. Term 

1. This Agreement shall commence on the Commencement Date. Unless terminated earlier in accordance with the terms of this Agreement or this clause, this Agreement shall continue for the Initial Term (as specified in Section 4 Services (Recurring) & Fees) and automatically extends by whichever is lesser of 12 months or the Initial Term (“Extended Term”) at the end of the Initial Term and at the end of each Extended Term. Either party may give written notice to the other party not later than 3 months before the end of the Initial Term or the relevant Extended Term, to terminate this Agreement at the end of the Initial Term or the relevant Extended Term, as the case may be.  

11. Termination 

1. Without affecting any other right or remedy available to it, the Provider may terminate this Agreement forthwith if: 

1. the Customer is in breach of any of its obligations hereunder; or 

2. the Customer has entered into liquidation (other than for the purposes of a bona fide amalgamation or reconstruction) whether compulsory or voluntarily or compounds with its creditors generally or has an administrator, administrative receiver or receiver appointed over all or a substantial part of its undertaking or assets; or 

3. the Customer has become bankrupt or shall be deemed unable to pay its debts by virtue of Section 123 of the Insolvency Act 1986; or 

4. the Customer ceases or threatens to cease to carry on business; or 

5. any circumstances whatsoever beyond the reasonable control of the Provider necessitate and justify the termination of the Services. 

2. In the event of termination under clause 11.1 the Provider shall retain any sums already paid by the Customer without prejudice to any other rights may have whether at law or otherwise. 

12. Notices 

1. Any notice, document or communication given by the Customer shall be given by email to accounts@cloud10.it or to such email address of which notice has previously been notified by the Provider to the Customer. Any notice by the Provider shall be given by email to the Customer contract contact email address.  

2. A notice is deemed to have been received at the time of sending the email.  

3. To prove service, it is sufficient to prove that the email was sent to the contact email address as set out above and receipt was acknowledged by return from the email address to which it was sent or otherwise by an authorised representative of the receiving party. 

4. The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.  

13. Limitation of liability and indemnity 

1. During this Agreement the Provider shall maintain in force insurance policies with reputable insurance companies, against all risks that would normally be insured against by a prudent businessperson in connection with the risks associated with this Agreement, and produce to the Customer on demand full particulars of that insurance and the receipt for the then current premium upon request.

2. The Customer shall indemnify the Provider against all damages, costs, claims and expenses suffered by the Provider arising from loss or damage to any equipment (including that of third parties) caused by the Customer, or its agents or employees. 

2. Nothing in this Agreement excludes the liability of the Provider for death or personal injury caused by the Provider’s negligence or for fraud or fraudulent misrepresentation. 

3. The Provider shall not in any circumstances be liable to the Customer for any types of loss listed below whether arising from breach of contract, tort (including negligence), misrepresentation, restitution, breach of statutory duty or otherwise. The types of loss include:  

1. Loss of profits or loss of turnover 

2. Loss of revenue 

3. Loss of business or contracts 

4. Loss of anticipated savings and goodwill 

5. Losses arising from loss or corruption of, or damage to, software and/or data 

6. Loss of or damage to goodwill;  

7. Any other consequential, special or indirect losses; and 

8. Any losses suffered by the Customer arising from any claim by a third party for any of the above types of loss. 

4. Subject to clause 13.2, the Provider’s total liability to the Customer for all loss or damage arising under or in connection with this Agreement including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise shall not exceed the amount of the Fees paid by the Customer in the 12 months prior to the liability arising. 

5. If the Provider’s compliance with any applicable service levels or the performance of any obligations under this Agreement is perverted or delayed by the Customer including any delay or refusal to permit the Provider, its agents or contractors access to premises, systems and personnel for the purpose of providing the Services: 

9. Such service levels shall not apply for the period which the Provider, its agents or contractors are delayed or prevented from performing the services 

10. The Provider shall not be liable for any costs, charges or losses sustained by the Customer that arise directly or indirectly from such prevention or delay. 

14. Confidentiality  

1. During the term of the Agreement and after termination or expiration of the Agreement for any reason for a period of 1 year the following obligations shall apply to the party disclosing confidential information (‘the Disclosing Party’) to the other party (‘the Receiving Party’).  

2. Subject to clause 14.3, the Receiving Party:   

1. may not use any confidential information for any purpose other than the performance of its obligations under these Terms and Conditions.   

2. may not disclose any confidential information to any person except with the prior written consent of the Disclosing Party; and   

3. shall make every effort to prevent the use or disclosure of the confidential information.  

3. The obligations of confidence referred to in the provisions of this clause shall not apply to any confidential information that:   

4. is in the possession of and is at the free disposal of the Receiving Party or is published or is otherwise in the public domain before its receipt by the Receiving Party.   

5. is or becomes publicly available on a non-confidential basis through no fault of the Receiving Party.   

6. is required to be disclosed by any applicable law or regulation; or   

7. is received in good faith by the Receiving Party from a third party who, on reasonable enquiry by the Receiving Party claims to have no obligations of confidence to the other party to these Terms and Conditions in respect of it and who imposes no obligations of confidence upon the Receiving Party.  

4. Without prejudice to any other rights or remedies the Disclosing Party may have, the Receiving Party acknowledges and agrees that in the event of breach of this clause the Disclosing Party shall, without proof of special damage, be entitled to an injunction or other equitable remedy for any threatened or actual breach of the provisions of this clause in addition to any damages or other remedies to which it may be entitled.  

5. The obligations of the parties under the provisions of this clause shall survive the expiry or the termination of the Agreement for whatever reason. 
    

15. Sub-Contracting and Assignment 

1. Following approval with the Customer, the Provider may sub-contract to third parties all or any part of the work to be performed hereunder. 

2. The Customer shall not assign to a third party any or all its rights or obligations under these Terms and Conditions without the prior written consent of the Provider.  

16. Force Majeure 

1. Neither the Provider nor the Customer shall be liable to the other or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of its obligations in relation to the Services, if the delay or failure was due to any cause beyond that party’s reasonable control.  Without prejudice to the generally of the foregoing, the following shall be regarded as causes beyond either party’s reasonable control: – 

1. act of God, explosion, flood, tempest, fire or accident. 

2. war or threat of war, sabotage, insurrection, civil disturbance or requisition. 

3. acts, restrictions, regulations, byelaws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority; 

4. import or export regulations or embargoes; 

5. strikes, lock-outs, or other industrial actions or trade disputes (whether involving employees of either the Provider or the Customer or of a third party); 

6. difficulties in obtaining raw materials, labour, fuel, part or machinery. 

7. power failure or breakdown in machinery. 

2. If a force majeure event continues for a period of 3 months or more then either party shall be entitled to terminate the Services on written notice to the other party. Neither party shall have any liability to the other in respect of the termination of the Services as a result of a Force Majeure event. 

3. Irrespective of the occurrence of any Force Majeure event, the Customer shall continue to pay all Fees due unless the Customer is unable to use the Services in which case the charges, or part thereof depending on the extent to which the customer is unable to use the Services, shall cease until the Services, or relevant part, are available for use.  

17. Compliance with Laws and Anti-Bribery laws 

Each party shall: 

1. Comply with all applicable law and laws relating to anti-bribery and anti-corruption including without limitation the Bribery Act 2010 (Anti-Bribery Laws) and shall not do, or omit to do, any act that will cause the other party to be in breach of the Anti-Bribery Laws. 

2. Not engage in any activity, practice or conduct which would constitute an offence under the Anti-Bribery Laws if such activity, practice or conduct had been carried out in the United Kingdom.  

3. Promptly report to the other party any request or demand for any undue financial or other advantage of any kind received by it in connection with the performance of the services.  

4. Maintain throughout the terms of the service provision its own anti-bribery policy including without limitation adequate procedures (as defined in section 7(2) Bribery Act 2010) to ensure compliance with the Anti-Bribery Laws and shall enforce such policy and procedures where appropriate.  

18. Applicable Law and Jurisdiction 

1. This Agreement shall be governed and construed in accordance with the law of England and Wales and the parties shall submit to the exclusive jurisdiction of the English and Welsh courts.