The Conditions set out below govern the supply of goods and/or services by Upstream IT Limited. Read them carefully to ensure that the Conditions are acceptable. The Conditions are not intended to affect or restrict any rights under law which are given to consumers. The attention of all clients who are not consumers is drawn to the provisions of Conditions 11, 12, 13 and 14.
1.1 The definitions and rules of interpretation in this clause apply in these Conditions.
Additional Client Resources: including but not limited to any equipment, Domain and Hosting Services, hardware, programming, software, Subscription Service, system, reinstallation, patches from the relevant Software manufacturer or open source software, removal of viruses, changing of settings or part of any of the aforementioned in addition to the Client’s current equipment and/or software.
Additional Services: has the meaning in clause 4.4.
Applications: computer programs designed to perform a particular function such as word-processing, pay-roll, accounting and so on.
Browsers: computer programs through which the user is enabled to access the world wide web and view websites such as Internet Explorer or Google Chrome.
Contract: the contract between Upstream and the Client for the supply of goods and/or services, incorporating these Conditions together with the Order (and Contract Form where relevant).
Contract Form: the form headed ‘CONTRACT FORM’ in this document or as provided by Upstream to the Client.
Client: the person, firm or company who purchases Services from Upstream.
Data Protection Legislation: means the Data Protection Act 1998 and the Privacy and Electronic Communications (EC Directive) Regulations 2003 and from 25 May 2018 the General Data Protection Regulation and any legislation implemented in connection with the General Data Protection Regulation and any replacement legislation coming into effect from time to time.
Domain and Hosting Services: any services related to domain name registration, domains generally, website hosting, computer server hosting, Servers, email, registration, transfer, renewals, upgrades, data and/or disk space, bandwidth and any other similar or related services provided by a Third Party in relation to website domains, emails and hosting services.
Equipment: the IT equipment and/or hardware described in the Contract Form, unless agreed in writing with Upstream.
Excluded Causes: means:
(a) a defect in the manufacturer’s design of the Software and/or Equipment;
(b) faulty materials or workmanship in the manufacture of the Software and/or Equipment;
(c) Legacy Software and/or Legacy Equipment, where an Additional Service is recommended by the Client and/or Upstream;
(d) use of the Software and/or Equipment with computer equipment or materials not supplied or approved in writing by the Upstream;
(e) any maintenance, alteration, modification or adjustment carried out by persons other than Upstream or its employees or agents (unless approved by the Upstream in accordance with clause 6.1(g));
(f) the Client or a third party moving the Equipment;
(g) the use of the Software and/or Equipment in breach of any of the provisions of the agreement under which the Software and/or Equipment was supplied, including any Manufacturer’s Terms and Guidance;
(h) a failure, interruption or surge in the electrical power or its related infrastructure connected to the Software and/or Equipment;
(i) a failure or malfunction in the air conditioning or other environmental controls required for the normal operation of the Equipment, or an error or omission in the correct use of that air conditioning or other environmental controls by the Client;
(j) failure to provide Upstream with such information, instructions and materials as Upstream may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects; and/or
(k) the neglect or misuse of the Software and/or Equipment.
General Data Protection Regulations (GDPR): means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data.
Inspection: any inspection carried out by Upstream in order to assess the condition of the Equipment and/or Software.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, trade names, domain names, rights in get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, moral rights, rights in confidential information (including without limitation know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered, and including without limitation all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Legacy Equipment: Equipment which in Upstream’s reasonable opinion, requires either additional parts or modifications or to be replaced in its entirety.
Legacy Software: Software which in Upstream’s reasonable opinion, is a non-current version of the software which requires either maintenance by way of a Maintenance Release or requires a New Version.
Maintenance Release: a release of the Software which corrects faults, adds functionality or otherwise amends or upgrades the Software, but which does not constitute a New Version.
Manufacturers Terms and Guidance: the operating manual, licence, end user licence or EULA, terms and conditions, recommendations, best practice, guidance and/or instructions as the case may be, supplied with any Equipment and/or Software by the manufacturer and/or supplier of the Equipment and/or Software.
New Version: any new version of the Software which from time to time is publicly marketed and offered for purchase by the Supplier in the course of its normal business, being a version which contains such significant differences from the previous versions as to be generally accepted in the marketplace as constituting a new product.
Operating Systems Software: the basic computer program necessary to run a particular computer system such as Unix and Microsoft Windows.
Order: the Client’s order (whether written or oral) for the supply of goods and/or services, as may be set out in the Contract Form or the Client’s acceptance of Upstream’s quotation.
Premises: means the premises listed on the Contract Form as the main site (and under ‘Other Premises’ if any are listed).
Pre-existing Materials: materials, systems, hardware and software which existed before the commencement of the Services.
Rate: as detailed in above table, if no rates are inserted these will be at Upstream’s price list in force at the time of the provision of the Services.
Retainer End Date: the date shown as such on the Contract Form.
Retainer Renewed Period: has the meaning in clause 3.2(a).
Retainer Renewed End Date: has the meaning in clause 3.2(b).
Retainer: as detailed in the above table, if applicable.
Server: a computer server, which may or may not be based within the European Economic Area.
Services: the IT equipment maintenance and supply services to be provided by Upstream under the Contract in relation to the Equipment (if applicable) together with the Software Services.
Software: Operating Systems Software, Subscriptions Service and related Utility Software (but always excluding Applications and Browsers unless agreed in writing with Upstream), in relation to the Equipment and/or agreed Users as detailed in the Order and/or Contract Form.
Software Services: the IT installation, support and maintenance services which are capable of being provided in accordance with the Software’s Manufacturer Terms and Guidance, and to the extent that any Additional Client Resources are agreed to be supplied by Upstream.
Start Date: the date shown on the Contract Form, or if no date is detailed or no Contract Form exists, the date shall be the earliest date of any of the events listed in clause 2.4.
Subscription Service: any Third Party product and/or service which is either resold to, distributed to, or purchased by Upstream (and whether as agent or in any other way) for Upstream’s clients on a subscription or auto-renewal basis, including but not limited to cloud computing, software-as-a-service, ESET, Proofpoint or any Microsoft product (such as Microsoft Office 365 or Azure).
Third Party: any third party who provides products or services.
Third Party Services: has the meaning given in clause 3.6.
Upstream: Upstream IT Limited, a limited company registered in Scotland with company number SC311050, and having its registered office at 1 Rutland Square, EH1 2AS.
User: an individual user account within the Client’s business.
Utility Software: computer programs which add functions to the operating system, such as network management or virus protection programs.
VAT: value added tax chargeable for the time being and any similar additional tax.
1.2 Clause and paragraph headings shall not affect the interpretation of these Conditions.
1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural include the singular.
1.6 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.7 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
1.8 A reference to writing or written includes faxes and e-mail.
1.9 References to clauses are to the clauses of these Conditions.
2.1 These Conditions shall:
(a) apply to and be incorporated in the Contract; and
(b) prevail over any inconsistent terms or conditions contained in, or referred to in, the Client’s purchase order, confirmation of order or specification or any other document, or implied by law, trade custom, practice or course of dealing.
2.2 No addition to, variation of, exclusion or attempted exclusion of any term of the Contract shall be binding on Upstream unless in writing and signed by a duly authorised representative of Upstream. The Client’s standard terms and conditions (if any) attached to, enclosed with, or referred to in, any order shall not govern the Contract.
2.3 Each Order or acceptance of a quotation for Services or other document issued by the Client shall be deemed to be an offer by the Client to purchase Services subject to these Conditions.
2.4 No Order placed by the Client shall be deemed to be accepted by Upstream until a written acknowledgement of order is issued by Upstream or Upstream commences or executes work pursuant to that order.
2.5 Any quotation is valid for the period of time stated within it, unless no such period is stated in which case the quotation is valid for a period of 14 working days from its date, provided that Upstream has not previously withdrawn it.
3. CONTRACT DURATION AND/OR RENEWAL
3.1 The Contract shall commence on the Start Date.
3.2 The Contract shall continue until and unless:
- the Contract is terminated earlier in accordance with clause 15; or
- where a Retainer is agreed, in accordance with clause 3.3 and 3.4.
3.3 Retainer Termination. Retainers may be terminated by either party giving:
- at least one months written notice to the other party before the Retainer End Date (such notice to take effect on the Retainer End Date); or
- where the Contract is in a Retainer Renewed Period, one months written notice to the other party before the Renewed Retainer End Date in accordance with clause 3.4(c).
3.4 Retainer Annual Renewal. If notice is not provided in accordance with clause 3.3(a):
(a) the Contract shall be renewed and continue for 12 month periods (each such period being a “Retainer Renewed Period”) until termination occurs in accordance with clauses 3.4(c) or 15;
(b) the Retainer End Date shall become the date occurring 12 months after the previous Retainer End Date (“Renewed Retainer End Date”);
(c) the Contract may be terminated on providing at least three month’s written notice before the Renewed Retainer End Date as described in clause 3.3(b) (such notice to take effect on the Renewed Retainer End Date); and
(d) the price for the Retainer Renewed Period may change in accordance with clause 8.3.
3.5 If termination occurs in accordance with this clause 3, the date of termination will be the date of expiry of the notice period and the time of termination of the Contract will be at midnight on the date of expiry of the notice period.
3.6 The Client agrees that any products and/or services supplied directly or indirectly by any Third Party to the Client, including any Subscription Services, which are maintained by Upstream on a subscription, auto-renewal basis or for an agreed period of time in accordance with the relevant Third Party terms and conditions (“Third Party Services”) are subject to the relevant Third Party terms and conditions which are likely to contain separate cancellation and termination policies and further agrees that:
(a) the Client bears immediate and full responsibility for the Third Party Services (including any notice to continue or cancel any renewal / auto-renewal or subscription where relevant); and
(b) if either:
(i) notice to terminate is provided in accordance with this clause 3 or clause 15; or
(ii) any of Upstream’s invoices be outstanding;
unless otherwise agreed in writing with Upstream, Upstream shall be under no obligation to continue to provide its services in relation to any Third Party Services (including but not limited to support, maintenance, set-up or removal of the Client or any Users, notice to continue or cancel any renewal / auto-renewal or subscription where relevant, reinstallation, migration or change of settings) but that Upstream shall be entitled to take any action to remove Upstream or any liability of Upstream from any Third Party Service.
4.1 Upstream shall use reasonable endeavours to manage and provide the Services in accordance in all material respects with these Conditions.
4.2 Upstream shall use reasonable endeavours to meet any performance dates specified, but any such dates shall be estimates only and time shall not be of the essence of the Contract unless Upstream agree otherwise in writing.
4.3 Subject to these Conditions (in particular clauses 4.4, 4.5, 5.2, 5.3, and 6) Upstream shall:
(a) Provide Services for the agreed Equipment and Software (as identified in the Contract Form or, with Upstream’s prior written agreement, added, or removed, from time to time during the course of the Contract.
(b) Endeavour to respond within the timescale specified in the Contract Form and endeavour to enable continuous operation of the Equipment and/or Software as described in clause 4.3 (a).
(c) Upon the Client’s instruction, endeavour to determine the cause of any faults in the Equipment or Software that occur and inform the Client of that cause.
4.4 When carrying out its Services, from time to time, Upstream and/or the Client may consider that the Equipment and/or Software (or part of the Equipment and/or Software) will need to be modified, replaced, updated, renewed and/or Additional Client Resources purchased, replaced, updated or renewed as the case may be (altogether “Additional Services”). If this happens:
(a) Upstream shall not be liable for any delay or failure to provide its Services (or any part of them) until and unless the relevant Additional Services have been provided, purchased or installed as the case may be and Upstream reasonably determines that it is able to continue to supply its Services (or any part of them); and
(b) if the Client decides to use Upstream to provide, purchase, replace, update or renew any Additional Client Resources:
(i) these will be charged for separately and Upstream reserves the right to invoice in advance for these Additional Client Resources before providing, purchasing, replacing, updating or renewing them as the case may be for the Client’s use; and
(ii) Upstream reserves the right to suspend or delay any such provision, purchase, replacement, update or renewal as the case may be should any invoice be outstanding until cleared funds are received by Upstream.
4.5 Upstream shall not be liable for delay or failure to provide its Services (or any part of them) to the extent that any faults in the Software and/or Equipment are due to any of (a) the Excluded Causes, (b) any operator error that is not reasonably foreseeable and planned for, (c) accidental damage, (d) interruption of electricity supply (where the interruption could reasonably have been prevented by the Client), (e) access to the Equipment and/or Software being denied or impeded, (f) the Client’s failure to make payment to Upstream under any outstanding invoice or (g) program error, where Upstream reasonably determines that the service required is out-with the scope of the Services.
5. SUBSCRIPTION SERVICES, DOMAIN NAMES AND HOSTING
5.1 Upstream may, but is not obliged to, introduce or offer Domain and Hosting Services via a Third Party when requested to do so as an Additional Service or an Additional Client Resource.
5.2 The Client agrees that if it instructs Upstream at any point in relation to any Subscription Service and/or Domain and Hosting Services, the Client is liable and responsible for:
(a) the upkeep, modification and updating of any details with the Third Party in relation to the Subscription Service, website and the Domain and Hosting Services (such as contact details, email addresses, removing obsolete or inappropriate data etc);
(b) checking the location of the Server used by any Third Party in relation to the Subscription Service and/or Domain and Hosting Services and whether or not said location affects the Client in any way, including in relation to any obligations the Client may have under the Data Protection Legislation;
(c) compliance with the terms and conditions set by any Third Party and/or Manufacturers Terms and Guidance in relation to the Subscription Service and/or Domain and Hosting Services (especially in relation to payment of any costs, title to use any selected domain name or use of the domain name in good faith).
5.3 The Client agrees that if it fails to comply with clause 5 the Client is liable and responsible for, and will fully indemnify Upstream and hold it harmless in respect of the whole consequences of such failure, whether foreseeable or not.
5.4 Except to the extent any claim is attributable to the negligence of Upstream, the Client agrees to fully indemnify and hold harmless Upstream in relation to any claim resulting from or caused by Upstream providing any Subscription Service and/or Domain and Hosting Services on behalf of the Client.
6.1 The Client shall (at its own cost):
(a) co-operate with Upstream in all matters relating to the Services and appoint a services manager, who shall have the authority to contractually bind the Client on matters relating to the Services;
(b) if an Inspection has not occurred prior to the Start Date:
(i) ensure the Equipment and Software detailed on the Contract Form are fault free and in a serviceable condition in an accessible location; and
(ii) allow an Inspection of the Equipment and/or Software to occur shortly after the Start Date (and in any event within one month of the Start Date);
(c) provide, in a timely manner (and at all times during usual working hours and within a reasonable period of time during Out of Hours):
(i) such access to the Client’s Equipment, Software, premises and data, and such working space, office accommodation and other facilities, as is requested by Upstream;
(ii) such documentation, information, operating manuals as Upstream may request, and ensure that such information is accurate in all material respects;
(d) be responsible for preparing the relevant Premises for the supply of the Services;
(e) be responsible for and ensure that all environmental and supply conditions are suitable for the Equipment and/or Software and are maintained in accordance with the Manufacturers Terms and Guidance;
(f) keep and operate the Equipment and/or Software in accordance with the Manufacturers Terms and Guidance; and
(g) ensure it does not alter, interfere, maintain, move, reset, make any addition, adjustment or modification or allow any other person to do the same in relation to the Equipment and/or Software except with:
(i) the prior written permission of Upstream IT (which consent shall not be unreasonably withheld); or
(ii) as may be permitted in the Manufacturers Terms and Guidance;
(h) be responsible for checking any backup and/or recovery system installed by Upstream or any third party are working to the Client’s requirements. Upstream may provide advice on best practice and/or help carry out basic checks on behalf of the Client but daily checks and/or carrying out the back-ups in accordance with clause 13.6(a)(iii) are entirely the responsibility of the Client unless otherwise agreed in writing.
6.2 If Upstream’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Client or the Client’s agents, sub-contractors or employees the Client shall indemnify and hold Upstream harmless against, and in all circumstances be liable to pay Upstream on demand, all reasonable costs, charges or losses of whatever nature sustained or incurred by Upstream (including, without limitation, any direct or indirect consequential losses, loss of profit and loss of reputation, loss or damage to property, injury to or death of any person and loss of opportunity to deploy resources elsewhere.
6.3 If an Inspection reveals to Upstream that the Equipment and/or Software is not fault free or in a serviceable condition, or is in an unsatisfactory condition because of any of the Excluded Causes:
(a) a request to carry out the Services in relation to the faulty Equipment and/or Software shall count as a requested change in terms of clause 7 and Upstream may write to the Client with a written estimate in terms of clause 7.2; and/or
(b) if Upstream agrees to continue to provide Services (whether or not an estimate has been issued to the Client in accordance with clause 6.3(a)), following said Inspection, Additional Services may be required or recommended and clauses 4.4 and 4.5 will apply in that event.
6.4 The Client shall not, without the prior written consent of Upstream, at any time from the date of the Contract to the expiry of six months after the completion of the Services, solicit or entice away from Upstream or employ or engage or attempt to employ or engage any person who is, or has been, employed as an employee or engaged as a sub-contractor of Upstream.
6.5 Any consent given by Upstream in accordance with clause 6.4 shall, unless Upstream otherwise agree in writing, be subject to the Client paying to Upstream a sum equivalent to 20% of the then current annual remuneration of Upstream’s employee or sub-contractor or, if higher, 20% of the annual remuneration to be paid by the Client to such employee or sub-contractor.
6.6 The Client agrees to familiarise itself with any relevant Manufacturers Terms and Conditions and that the Client is solely liable for any action or omission in relation to the application of any relevant Manufacturers Terms and Conditions. The Client is advised to particularly consider within any relevant Manufacturers Terms and Conditions the following:
(a) potential for automatic renewal of subscriptions or Software;
(b) any pricing adjustments whether or not related to the renewal of subscriptions or Software;
(c) cancellation, termination and notice provisions;
(d) migration charges, deadlines and obligations;
(e) data protection obligations.
7.1 If either party wishes to change the scope of the Services, it shall submit details of the requested change to the other in writing.
7.2 If either party requests a change to the scope or execution of the Services, Upstream shall, within a reasonable time, provide a written estimate to the Client of:
(a) the likely time required to implement the change;
(b) any variations to Upstream’s charges arising from the change;
(c) the likely effect of the change on the Services; and
(d) any other impact of the change on the terms of the Contract.
7.3 If Upstream requests a change to the scope of the Services, the Client shall not unreasonably withhold or delay consent to it.
7.4 If the Client wishes Upstream to proceed with the change, Upstream has no obligation to do so unless and until the parties have agreed in writing on the necessary variations to its charges, the Services and any other relevant terms of the Contract to the extent these are reasonably required to take account of the change.
8.1 Clause 8.2 shall apply if the Services are to be provided on a time-and-materials basis. Clause 8.3 shall apply if the Services are to be provided for a fixed price. The remainder of this clause 8 shall apply in either case.
8.2 Where the Services are provided on a time-and-materials basis:
(a) the charges payable for the Services shall be calculated in accordance with Upstream’s standard daily fee rates as amended from time to time;
(b) Upstream’s standard daily fee rates are calculated on the basis of an seven-hour day worked between 9.00 am and 5.00 pm on weekdays (excluding weekends and public holidays);
(c) Upstream shall be entitled to charge at any overtime rate referred to in the Contract Form for part days and for time worked by members of Upstream’s team outside the hours referred to in clause 8.2(b) on a pro-rata basis;
(d) Upstream shall invoice the Client monthly in arrear for its charges for time, expenses and materials (together with VAT where appropriate) for the month concerned, calculated as provided in this clause 8.
8.3 Where the Services are provided on a retainer basis or for a fixed price for a period of time:
(a) the total price for the Services shall be the amount set out in the Contract for that period of time. The total price shall be paid to Upstream in instalments as set out in this Contract; and
(b) if a renewal occurs automatically, Upstream may increase the total price of the Services as from the date of the renewal for the Renewal Period, and thereafter on the Renewed Retainer End Date. Any such increase will be notified to the Client;
All amounts due under this Contract shall be paid by the Client to Upstream in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law). Upstream shall invoice the Client for the charges that are then payable, together with expenses and the costs of materials (and VAT, where appropriate), calculated as provided in clause 8.4.
8.4 Any price for the Services excludes:
(a) the cost of hotel, subsistence, travelling and any other ancillary expenses reasonably incurred by Upstream in connection with the Services (except normal travel between Premises);
(b) the cost of any materials or services reasonably and properly provided by third parties required by Upstream for the supply of the Services;
(c) Third Party Services and/or Additional Client Resources purchased for the Client in accordance with clause 4.4(b),
such expenses, materials and third party services shall be invoiced by Upstream.
8.5 The price for any goods shall be the price set out in the Order or, if no price is quoted, the price set out in Upstream’s published price list as at the date of the order.
8.6 The price for some goods and services (in particular, most Subscription Services) will vary in accordance with the Manufacturer Terms and Conditions, including but not limited to the usage of the Client or User, and the number of Users in relation to the Software. Upstream reserves the right to vary the cost of said goods, services, expenses, materials, and/or Third Party Services in accordance with the price set by the relevant Third Party, the Manufacturer Terms and Conditions, the number of Users and/or amount of usage or any other action or omission of the Client (or taken on its behalf).
8.7 All amounts payable by the Client under the Contract are exclusive of VAT, which Upstream shall add to its invoices at the appropriate rate in force when the invoice is issued.
8.8 The Client shall pay each invoice submitted by Upstream in full, in cleared funds by the date stated for payment within said invoice, or if no pay by date is stated, within 30 days of receipt of said invoice.
8.9 Time for payment shall be of the essence of the Contract.
8.10 Without limiting its rights in any way, Upstream reserves the right to suspend the Services (including any Subscription Service) and demand immediate payment for any Services if any payment under the Contract or any other contract between the Client or any person associated with the Client, and Upstream becomes overdue.
8.11 All payments payable to Upstream under the Contract shall become due immediately on termination of the Contract, despite any other provision. This clause is without prejudice to any right to claim for interest under the law, or any such right under the Contract.
8.12 Upstream may, without prejudice to any other rights it may have, set off any liability of the Client to Upstream against any liability of Upstream to the Client. The Client shall not be able to exercise any right of set off without the prior written consent of Upstream.
9.1 All Intellectual Property Rights in the Services shall be owned by Upstream. Upstream hereby licenses all such rights to the Client free of charge and on a non-exclusive, worldwide basis to such extent as is necessary to enable the Client to make reasonable use of the Services pursuant to the Contract. If Upstream terminates the Contract under clause 15.1, this licence will automatically terminate.
9.2 The Client acknowledges that the Client’s use of rights in Pre-existing Materials is conditional on Upstream obtaining a written end-user licence (or sub-licence) of such rights from the relevant licensor or licensors on such terms as will entitle Upstream to license such rights to the Client.
10.1 The Client shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Client by Upstream or its agents, and any other confidential information concerning Upstream’s business or its products which the Client may obtain. The Client shall restrict disclosure of such confidential material to such of its employees, agents or sub-contractors as need to know it for the purpose of discharging the Client’s obligations to Upstream, and shall ensure that such employees, agents or sub-contractors are themselves subject to obligations of confidentiality corresponding to those which bind the Client.
10.2 All materials, equipment and tools, drawings, specifications and data supplied by Upstream to the Client shall at all times be and remain the exclusive property of Upstream, but shall be held by the Client in safe custody at its own risk and maintained and kept in good condition by the Client until returned to Upstream, and shall not be disposed of or used other than in accordance with Upstream’s written instructions or authorisation.
10.3 This clause 10 shall survive termination of the Contract, however arising.
11.1 Upstream has obtained and shall maintain for one year after the Services have been provided, the following insurance policies to cover its own legal liability:
(a) a public and product liability insurance policy with a limit of £2 million for any one event or series of connected events;
(b) a professional indemnity insurance policy with a limit of £2 million for any one event or series of connected events;
(c) employer’s liability insurance policy with a limit of £10 million for any one event or series of connected events.
Subject to clause 13, Upstream’s liability for any claim of any nature is therefore limited to and capped at the amount it actually recovers from its insurers in respect of any claim and the Client is responsible for making its own arrangements for the insurance of any loss not recovered from Upstream’s insurers.
12. UPSTREAM WARRANTIES
12.1 Upstream represents and warrants to the Client that the Services will be performed:
(a) in accordance with applicable laws and regulations; and
(b) with reasonable diligence, skill and care.
12.2 If, during the term of this Contract, Upstream receives written notice from the Client of any breach by Upstream of the representations and warranties contained in clause 12.1, Upstream shall, at its own option and expense, remedy that breach within a reasonable period following receipt of such notice, or, if it cannot remedy that breach, be entitled to terminate the Contract immediately on written notice to the Client and repayment to the Client of all sums which the Client has paid to Upstream for Services under this Contract during the 12 months immediately preceding the notice of termination. This clause sets out the Client’s sole remedy and Upstream’s entire liability for breach of the representations and warranties in clause 12.1.
12.3 No representation or warranty is given by Upstream that its employees are hardware or software engineers or that all faults will be fixed, or will be fixed within a specified period of time.
12.4 All other conditions, warranties or other terms which are not expressly set out in the Contract and which might have effect between the parties or be implied into the Contract or any collateral contract, whether by statute, common law or otherwise, are hereby excluded, including any additional implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose and the use of reasonable skill and care.
13. LIMITATION OF LIABILITY
13.1 Clauses 11, 12 and 13 set out the entire financial liability of Upstream (including without limitation any liability for the acts or omissions of its employees, agents and sub-contractors) to the Client in respect of:
(a) any breach of the Contract howsoever arising;
(b) any use made by the Client of the Services or any part of them; and
(c) any representation, misrepresentation (whether innocent or negligent), statement or delictual act or omission (including without limitation negligence) arising under or in connection with the Contract.
13.2 Nothing in these Conditions excludes the liability of Upstream:
(a) for death or personal injury caused by Upstream’s negligence; or
(b) for fraud or fraudulent misrepresentation.
13.3 Subject to clause 12 and clause 13.2:
(a) Upstream shall not in any circumstances have any liability for any losses or damages which may be suffered by the Client (or any person claiming under or through the Client), whether the same are suffered directly or indirectly or are immediate or consequential, and whether the same arise in contract, delict (including without limitation for negligence or breach of statutory duty howsoever arising), contract, misrepresentation (whether innocent or negligent) or otherwise for:
(i) special indirect, consequential or pure economic loss, costs, damages, charges or expenses, even though Upstream was aware of the circumstances in which such special damage could arise;
(ii) loss of profits; or
(iii) loss of business; or
(iv) depletion of goodwill or similar losses; or
(v) loss of anticipated savings; or
(vi) loss of goods; or
(vii) loss of contract; or
(viii) loss of use; or
(ix) loss or corruption of data or information;
provided that this clause 13.3(a) shall not prevent claims for loss of or damage to the Client’s tangible property that fall within the provisions of clause 13.3(b) or any other claims for direct financial loss that are not excluded by any of the categories (i) to (ix) inclusive of this clause 13.3(a);
(b) Upstream’s total liability in contract, delict (including without limitation negligence or breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the greater of:
(i) the amount of insurance proceeds which Upstream recovers from the relevant insurer; or
(ii) the total charges paid for the Services (excluding any charges for Equipment purchased by Upstream as agents for the Client from any Third Party) by the Client to Upstream during the 12 month period immediately before the date on which the cause of action first arose or, if the cause of action arose during any shorter period before 12 months had elapsed from the Start Date, during that shorter period.
13.4 Any dates quoted for performance of the Services are approximate only, and the time of performance is not of the essence. Upstream shall not be liable for any delay in delivery of the Services that is caused by a breach of clause 6.1, an event, circumstance or cause within the scope of clauses 6.2 and 6.3, or the Client’s failure to provide Upstream with adequate access or delivery instructions.
13.5 Subject to clause 13.3, no claim by the Client shall be competent unless the Client gives written notice (specifying the claim in reasonable detail) as soon as possible and in any event within one year after the relevant Service has been provided to the Client.
13.6 The Client acknowledges that:
(a) it is exclusively responsible for:
(i) ensuring that its own staff are trained in the proper use and operation of the Software;
(ii) ensuring the security, completeness and accuracy of all data inputs and outputs;
(iii) making regular backup copies of its data to assist the prospects of recovery of its data if the Software malfunctions; and
(iv) the selection, use of, and results obtained from, any other programs, equipment, materials or services used in conjunction with the Equipment and/or Software;
(b) the level of the Charges reflects the allocation of risk between the parties set out in clause 12 and clause 13; and
(c) it is in a better position than Upstream to assess and manage its risk in relation to its use of the Equipment and/or Software and the suitability of the Services to be provided under the Contract.
13.7 Client indemnity:
Upstream is a small company and, depending on the Client’s intended use of the Services, unlikely to have, or to be able to obtain on reasonably economic terms, adequate insurance to cover all potential losses or liabilities if claims are made in respect of its Services to the Client. The Client therefore agrees to indemnify and hold Upstream harmless in respect of any claims of any nature, whether made by or against the Client or by or against Upstream by any third parties, to the extent that the claims exceed the total amount, if any, paid to Upstream by its insurers in respect of such claims. If the Services relate to any service and/or good which is high risk, high value, high performance or experimental, Upstream will co-operate with any reasonable requests from the Client in relation to the Client obtaining its own insurance to cover the possibility that any claims might exceed the total amount, if any, recovered by Upstream from its own insurers in respect of all such claims.
If the Client is a limited company, a limited liability partnership, a trust or an unincorporated voluntary association, the directors / members / trustees /office bearers (as the case may be) of the Client each personally, jointly and severally, unconditionally and irrevocably (until all sums due to Upstream by the Client have been paid) (a) guarantee the payment of all sums due to Upstream by the Client; (b) indemnify and hold harmless Upstream in respect of any losses sustained by Upstream as a result of trading with the Client; and (c) agree that the foregoing guarantee and indemnity shall not be discharged or affected by (i) anything that would not have discharged or affected them if they had been a principal debtor instead of a guarantor; (ii) any waiver, failure to enforce or giving of time by Upstream; or (iii) any increase in any credit limit or facilities extended to the Client.
15.1 Upstream may, without prejudice to any of its other rights or remedies to which it may be entitled, terminate the Contract without liability if:
(a) the Client fails to pay any amount due under this Contract on the due date for payment and remains in default not less than seven days after being notified in writing to make such payment;
(b) the Client commits a material breach of any other term of this Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
(c) the Client suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
(d) the Client commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of the Client with one or more other companies or the solvent reconstruction of the Client;
(e) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Client other than for the sole purpose of a scheme for a solvent amalgamation of the Client with one or more other companies or the solvent reconstruction of the Client;
(f) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the Client;
(g) the holder of a qualifying floating charge over the assets of the Client has become entitled to appoint or has appointed an administrative receiver;
(h) a person becomes entitled to appoint a receiver over the assets of the Client or a receiver is appointed over the assets of the Client;
(i) a creditor of the Client executes or attempts to execute diligence against, the whole or any part of the other party’s assets and such diligence is not discharged within 14 days;
(j) any event occurs, or proceeding is taken, with respect to the Client in any jurisdiction to which it is subject that has an effect equivalent or broadly similar to any of the events mentioned in clause 15.1(c) to clause 15.1(i) (inclusive).
15.2 Any provision of this Contract that expressly or by implication is intended to continue in force on or after termination or expiry of this Contract shall remain in full force and effect.
16. DATA PROTECTION AND USE OF INFORMATION
16.1 The parties acknowledge that for the purposes of carrying out the Services in accordance with this Agreement, Upstream is required to process personal data on behalf of the Client. The data processing activities are as follows:
|Categories of data||Name, address, telephone number,
password, credit card or bank account data,
email addresses of data subjects and recipients,
email messages of data subjects and recipients,
file names, sizes, and types,
country and language settings,
browser type and versions,
preferred payment method,
|Categories of data subjects||Users, Client personnel (employees, officers and individuals contracted to the Client) and Client customers|
|Processing operations||Storing, holding and accessing personal data for the purpose set out below|
|Location of processing operations||UK, unless the Client selects Software which uses servers or processes data out with the UK (see clause 16.5).|
|Purposes of processing||Allowing Upstream to:
· perform the Contract and provide Services to the Client, or to take steps at the Client’s request prior to entering into a contract. This may involve carrying out credit checks and/or processing the Client’s payment for goods and services, and may be carried out using profiling and automated processing both by Upstream and by third parties such as credit reference agencies and/or payment service providers;
· provide technical support to the Client (which can include contacting Client personnel and where relevant, Client customers to provide support and/or problem solve);
· carry out credit and risk assessment checks on the Client;
· comply with legal obligations to which Upstream is subject (including but not limited to the pursuit or defence of legal proceedings as a result of the Services; compliance with a court order or judgment; abiding by any law, regulation or government request; co-operating with regulatory bodies; co-operating with third parties to prevent money laundering and fraud; and to uphold our Conditions);
· evaluating the use of our Service for market and product analysis
· where the Client indicates a desire to participate in promotions, marketing or events offered by Upstream.
|Duration of processing||As long as strictly necessary for the purposes of processing listed above. This will usually be just over the length of the period of the Retainer or, if no Retainer exists – after all Services have been provided|
16.2 Each of the parties shall comply with its respective obligations under the Data Protection Legislation.
16.3 Upstream shall, in circumstances in which it is a data processor on behalf of the Client:
(a) process any personal data only in accordance with the instructions of the Client and notify the Client immediately if, in Upstream or the Client’s reasonable opinion, any instructions of the Client relating to the processing of personal data are unlawful;
(b) ensure that only Upstream personnel (all employees, officers and individuals contracted to Upstream and involved to any extent in the performance of the Services and performance of this Agreement) required by Upstream to assist it in meeting its obligations under this Agreement shall have access to the personal data and that each Upstream personnel have received training and/or instruction in the care of and handling of personal data;
(c) ensure that any persons used by Upstream to process personal data are subject to legally binding obligations of confidentiality in relation to the personal data;
(d) not transfer or disclose personal data to any third party or subcontractor without the prior written consent of the Client or if otherwise compelled by law to make such a disclosure except in accordance with this Agreement and to:
(i) Business Partners. Such as suppliers, contractors and sub-contractors for the performance of any contract we enter into with them or the Client in connection with the Services. For example payment service providers (who will process the payment of the Client), or Software and other technology suppliers (who provide or manufacture the Software or other IT goods and services, such as servers, laptops, mobile phones).
(ii) Credit reference agencies. Upstream may make such enquiries about the Client’s credit worthiness, including checks with credit reference agencies, as it thinks fit and may terminate the Contract if, acting reasonably, Upstream believe the Client will not be able to pay for the services and/or goods it has ordered. If the Client requires finance from a bank or other credit provider (Credit Provider), Upstream may pass the Client’s personal data to the Credit Provider. The Credit Provider may use automated processing in relation to said personal data, though this may be objected to at any time by the data subject (however if a credit check is required, this may mean that Upstream/the Credit Provider are unable to fulfil the contract. Whether finance is required or not, Upstream may provide personal data to credit reference agencies and they may keep a record of any search that they do.
(iii) In the event of a sale or acquisition. If Upstream or substantially all of its assets are acquired by a third party, in which case personal data held by it about its customer will be one of the transferred assets.
(e) ensure that obligations equivalent to those set out in this clause are included in all contracts between Upstream and any subcontractors who will be processing personal data in accordance with clause 16.3(c);
(f) take appropriate technical and organisational measures against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, alteration to, unauthorised disclosure or access to, or damage to, personal data taking into account the harm that might result from such unauthorised or unlawful processing, loss, destruction or damage and the nature of the personal data to be protected;
(g) provide prompt and all reasonable assistance and co-operation to enable the Client to fulfil its obligations to respond to requests from individuals exercising their rights under the Data Protection Legislation, including data subject access requests;
(h) maintain a record of all processing activities carried out in connection with this Agreement;
(i) notify the Client immediately in writing if Upstream receives any request, complaint or other communication relating directly or indirectly to the processing of personal data in connection with this Agreement and provide all reasonable assistance and co-operation to the Client in dealing with any such request, complaint or communication;
(j) notify the Client immediately if Upstream or any subcontractor suffers a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of or access to personal data;
(k) upon termination of this Agreement, at the Client’s choice, delete securely or return all personal data to the Client;
(l) make available to the Client all information necessary to demonstrate compliance with the obligations set out in this clause 16 and allow for its data processing facilities, procedures and documentation which relate to the processing of personal data to be scrutinised by auditors of the Client and contribute to audits, including inspections, conducted by or on behalf of the Client or by the ICO;
(m) not process or transfer personal data outside the EU unless the transfer is made (a) with the data subject’s or the Client’s prior written consent (b) necessary for the performance of a contract between the data subject and the organisation or for pre-contractual steps taken at the data subject’s request (c) necessary for the performance of a contract made in the interests of the individual between the controller and another person (d) necessary for the establishment, exercise or defence of legal claims or (e) another derogation from the general prohibition on transfers of personal data out with the EU within the applicable Data Protection legislation applies.
16.4 The Client acknowledges that Upstream is reliant on the Client for direction as to the extent to which Upstream is entitled to use and process the personal data. Consequently Upstream will not be liable for any claim brought by a data subject arising from any action or omission of the Client, to the extent that such action or omission resulted directly or indirectly from the Client’s instructions and the Client further agrees to indemnify and keep Upstream indemnified at the Client’s expense against all costs, claims, damages or expenses incurred by Upstream or for which Upstream may become liable due to any failure by the Client (or any of its personnel, employees or agents) to comply with any of its obligations under this agreement.
16.5 The Client understands that certain Software, including Microsoft 365, replicates email and client files to datacentres across the world for redundancy purposes and that if the Client chooses to subscribe to Microsoft 365 data will be transferred out with the EU in order to perform this contract. The Client undertakes to obtain consent from the data subjects for the transfer of this data prior to any transfer of personal data to Upstream and/or through the Software.
Neither party shall be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control (including without limitation, failure of a utility service (including electricity and broadband), failure of a transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery (including servers), fire, flood, storm or default of suppliers or sub-contractors).
In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for 3 months, the party not affected may terminate this Contract by giving 14 days written notice to the affected party.
No failure or delay by Upstream to exercise any right or remedy provided under this Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy by Upstream shall prevent or restrict the further exercise of that or any other right or remedy.
19.1 If a dispute arises out of or in connection with this Contract or the performance, validity or enforceability of it (Dispute) then the parties shall follow the procedure set out in this clause:
(a) either party shall give to the other written notice of the Dispute, setting out its nature and full particulars (Dispute Notice), together with relevant supporting documents. On service of the Dispute Notice, the Upstream employee or engineer responsible for managing the Client’s Contract (Upstream Engineer) and the Client’s employee or manager responsible for dealing with Upstream (Client Manager) shall attempt in good faith to resolve the Dispute;
(b) if the Upstream Engineer and Client Manager are for any reason unable to resolve the Dispute within 30 days of service of the Dispute Notice, the Dispute shall be referred to Upstream’s Managing Director and the Client’s Managing Director who shall attempt in good faith to resolve it; and
(c) if Upstream’s Managing Director and the Client’s Managing Director are for any reason unable to resolve the Dispute within 30 days of it being referred to them, the parties will consider entering into mediation proceedings to resolve the Dispute.
19.2 The commencement of mediation shall not prevent the parties commencing or continuing court proceedings in relation to the Dispute under clause 29.
20. RIGHTS AND REMEDIES
The rights and remedies provided under this Contract are in addition to, and not exclusive of, any rights or remedies provided by law.
21.1 If any provision or part-provision of this Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Contract.
21.2 If any provision or part-provision of this Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
22.1 This Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
22.2 The Client acknowledges that in entering into this Contract it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Contract.
23.1 The Client shall not, without the prior written consent of Upstream, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.
23.2 Upstream may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.
Nothing in the Contract is intended to or shall operate to create a partnership between the parties.
25.1 The Client agrees Upstream may act as agent for the Client when carrying out its Services on behalf of the Client but only when pricing, purchasing or discussing the purchase or lease of Equipment and/or Software from suppliers or manufacturers. In such cases, Upstream shall have authority to act in the name or on behalf of and bind the Client provided Upstream act in good faith and within the authority (whether express or implied) given by the Client in relation to the Services.
25.2 The Client shall not have authority to act in the name or on behalf of or otherwise to bind Upstream in any way (including without limitation the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or Power.
26. THIRD PARTY RIGHTS
No one other than a party to this Contract, their successors and permitted assignees, shall have any right to enforce any of its terms.
27.1 Any notice or other communication given to a party under or in connection with this contract shall be in writing and shall be by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if it is incorporated) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause.
27.2 Any notice or communication shall be deemed to have been received:
(a) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
(b) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service.
27.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution. For the purposes of this clause, “writing” shall not include e-mail.
The Contract and any disputes or claims arising out of or in connection with it or its subject matter or formation (including without limitation non-contractual disputes or claims) are governed by and construed in accordance with Scots law.
Each party irrevocably agrees that the courts of Scotland shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).