1. Interpretation
The following definitions and rules of interpretation apply in these Conditions.
1.1 Definitions:
Affiliate: means, with respect to either party, any person, organisation or entity controlling, controlled by or under common control with, such party, where “control” means direct or indirect ownership or control of more than 50% of the voting interests of such party, or the power to direct its management or affairs.
Business Day: a day other than a Saturday, Sunday, or public holiday in England, when banks in London are open for business.
Charges: the charges payable by the Customer for the supply of the Services in accordance with clause 5.
Change or Changes: a variation to the Services and/or Deliverables provided under, or to any other terms of, the Contract.
Commencement Date: has the meaning given in clause 2.2.
Conditions: these terms and conditions as amended from time to time in accordance with clause 10.5.
Confidential Information: any information disclosed by one party to the other that is marked as confidential or proprietary at the time of disclosure, or where, given the nature of the information and the circumstances of the disclosure, the receiving party should reasonably understand the information to be confidential or proprietary in nature.
Consumer Prices Index: the all items consumer prices index published by the Office for National Statistics (or any successor body) in the United Kingdom, or such other index as may replace it from time to time.
Contract: the contract between Saepio and the Customer for the supply of Services in accordance with these Conditions, as supplemented by the relevant Service Specific Terms and Conditions pursuant to clause 2.4, and the provisions of the relevant Quotation.
Contract Year: the 12-month period commencing on the Commencement Date and each successive 12-month period commencing on each anniversary of the Commencement Date.
Customer: the corporate entity who purchases Services from Saepio, as stated in the relevant Quotation. Customer Default: has the meaning set out in clause 4.3.
Data Protection Legislation: the UK Data Protection Act 2018, 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 (including as incorporated into English law via the Data Protection, Privacy and Electronic Communications (Amendment Etc.) (EU Exit) Regulations 2019), the UK Privacy and Electronic Communications Regulations 2003, and all other applicable laws relating to the processing of personal data and privacy as amended, updated or replaced from time to time, including where applicable the guidance and codes of practice issued by the UK Information Commissioner, and all references to ‘personal data’, ‘data subject’, ‘processing’, ‘pseudonymisation’, ‘controller’, ‘processor’, ‘personal data breach’ and ‘cross-border processing’ shall be construed accordingly.
Deliverables: the deliverables set out in the Quotation created or delivered by Saepio for the Customer.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off , rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Quotation: the written statement provided by Saepio to the Customer, which sets out the specification, scope, Charges, Deliverables, and any other relevant details in respect of the Services.
Services: the services, including the provision of the Deliverables, to be supplied by Saepio to the Customer as set out in the Quotation.
Service Specific Terms and Conditions: the additional terms and conditions related to certain Services as outlined at Schedules 1 and 2.
Saepio: Saepio Solutions Limited registered in England and Wales with company number 10343084.
1.2 Interpretation:
A reference to:
• the singular includes the plural and vice versa and any gender includes the others;
• a person includes natural persons, firms, companies, corporations, states and associations wherever and however
incorporated or established; and
• a document is to that document as modified or replaced from time to time.
A reference to legislation or a legislative provision:
• is a reference to it as amended, extended, or re-enacted from time to time; and
• shall include all subordinate legislation made from time to time under that legislation or legislative provision.
Any words following the terms including, include, in particular, for example or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase, or term preceding those terms.
A reference to writing or written includes email but not fax.
2. Basis of contract
2.1 The Quotation constitutes an offer by Saepio to supply Services in accordance with these Conditions and any relevant Service Specific Terms and Conditions.
2.2 The Quotation shall be deemed to be accepted on the Customer issuing written acceptance of the Quotation (email to suffice), at which point, and on which date the Contract shall come into existence (Commencement Date). No Contract which has come into force in accordance with this clause 2.2 may be cancelled by Customer unless agreed in writing by an authorised representative of Saepio. Customer remains liable for all outstanding Charges for the remainder of the term of the Contract unless otherwise agreed in writing by Saepio.
2.3 Subject to clause 3.1 of these Conditions, any descriptive matter, or advertising issued by Saepio, and any descriptions or illustrations contained in Saepio’s marketing materials (including on its website), are issued, or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
2.4 These Conditions and any applicable Service Specific Terms and Conditions, as stated in the Quotation, apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice, or course of dealing.
2.5 Any Quotation given by Saepio shall only bind Saepio upon its counter signature pursuant to clause 2.2 and is only valid for a period of thirty (30) Business Days from its date of issue.
3. Supply of Services
3.1 Saepio shall supply the Services to the Customer in accordance with the Quotation in all material respects.
3.2 Saepio shall use all reasonable endeavours to meet any performance dates specified in the Quotation, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3.3 Saepio reserves the right to amend the Quotation if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and Saepio shall notify the Customer in any such event.
3.4 Saepio warrants to the Customer that the Services will be provided using reasonable care and skill.
3.5 Saepio expects that Customer has adequate inspection, testing and approval processes and, on completion of any Services provided by Saepio, the written sign off by Customer of such Services shall be considered acceptance of the satisfactory completion of such Services. In the event that Customer has not provided written confirmation of the Services, nor raised any concerns with them within seven (7) days of completion, such Services will be deemed accepted in full by the Customer.
4. Customer’s obligations
4.1 The Customer shall:
• co-operate with Saepio in all matters relating to the Services;
• obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start; and
• comply with any additional obligations as set out in the Contract.
4.2 The Customer warrants that:
• any representative who commits Customer to a Contract has the authority to do so;
• Customer will use the Services in accordance with the Contract, and all applicable laws; and
• any information and materials supplied to Saepio by Customer in connection with a Contract shall be accurate and complete and use by Saepio shall not cause Saepio to infringe the rights, including any Intellectual Property Rights, of any third party.
4.3 If Saepio’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure
by the Customer to perform any relevant obligation (Customer Default):
• Without limiting or affecting any other right or remedy available to it, Saepio shall have the right, upon providing reasonable advance written notice to Customer, to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays Saepio’s performance of any of its obligations;
• Saepio shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from Saepio’s failure or delay to perform any of its obligations as set out in this clause 4.3; and
• the Customer shall reimburse Saepio on written demand for any reasonable and properly documented costs or losses sustained or incurred by Saepio arising directly or indirectly from the Customer Default.
5. Charges and payment
5.1 The Charges for the Services shall be set out in the Quotation and unless otherwise stated therein, shall be payable up front, in advance, and in full.
5.2 Saepio shall invoice the Customer on or after commencement of the Services
5.3 The Customer shall pay each invoice submitted by Saepio:
• within thirty (30) days of the date of the invoice; and
• in full and in cleared funds (in Pounds Sterling unless otherwise pre-agreed in writing with Saepio) to a bank account nominated in writing by Saepio, and time for payment shall be of the essence of the Contract.
5.4 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by Saepio to the Customer, the Customer shall, on receipt of a valid VAT invoice from Saepio, pay to Saepio such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services. The Customer shall be solely responsible for any and all import tariffs, duties, and other similar charges imposed on the receipt or provision of the Services and/or Deliverables (“Duties”). Saepio shall not be liable for any such Duties, and the Customer agrees to indemnify and hold Saepio harmless from any claims, liabilities, or expenses arising from the imposition of such Duties.
5.5 If the Customer fails to make a payment due to Saepio under the Contract by the due date, then, without prejudice to any other rights or
remedies available to Saepio:
• Saepio shall be entitled to withhold or suspend supply of the Services until such payment is made; and
• The Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 5.5 will accrue each day at 4% p.a. above the Bank of England’s base rate from time to time, but at 4% p.a. for any period when that base rate is below 0%.
5.6 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction
or withholding of tax as required by law).
6. Intellectual property rights
6.1 The following provisions of this clause 6 apply solely to the extent that Saepio creates any Deliverables on behalf of the Customer pursuant to a Quotation. If Saepio solely provides Third Party Software and/or the Third Party Software Services (as defined in Schedule 1) to the Customer pursuant to the relevant Quotation then the provisions of this clause 6 shall not apply.
6.2 All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned by Saepio.
6.3 Saepio grants to the Customer or shall procure the direct grant to the Customer of, a fully paid-up, worldwide, non-exclusive, royalty-free licence during the term of the Contract to copy the Deliverables (excluding materials provided by the Customer) for the purpose of receiving and using the Services and the Deliverables in its business for internal purposes only.
6.4 The Customer shall not sub-license, assign or otherwise transfer the rights granted in clause 6.3.
6.5 The Customer grants Saepio a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by the Customer to Saepio for the term of the Contract for the purpose of providing the Services to the Customer.
7. Limitation of liability
7.1 References to liability in this clause 7 include every kind of liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
7.2 Nothing in this clause 7 shall limit the Customer’s payment obligations under the Contract.
7.3 Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
• death or personal injury caused by negligence;
• fraud or fraudulent misrepresentation; and
• breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
7.4 Subject to clause 7.3 of these Conditions, and clauses 4.2 and 4.3 in each of the Service Specific Terms and Conditions, Saepio’s total aggregate liability to the Customer arising under or in connection with the Contract (whether arising in contract, tort (including negligence) or restitution, or for a breach of statutory duty or misrepresentation, or otherwise howsoever) for all liabilities arising during any Contract Year shall not exceed the total amount of Charges payable by Customer to Saepio in that Contract Year under the relevant Contract for the relevant Services.
7.5 Subject to clause 7.2 and clause 7.3, this clause 7.5 sets out the types of loss that are wholly excluded for both parties:
• loss of profits,
• loss of sales or business
• loss of agreements or contracts
• loss of anticipated savings
• loss of use or corruption of software, data, or information
• loss of or damage to goodwill, and indirect or consequential loss.
7.6 Any legal proceedings must be initiated by either the Customer or Saepio within twelve (12) months of the cause of action related to the
Customer’s claim arising.
8. Term and Termination
8.1 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
• the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing to do so;
• the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, being wound up (whether voluntarily or by statement of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
• the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
• the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
8.2 Without affecting any other right or remedy available to it, Saepio may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.
8.3 Without affecting any other right or remedy available to it, Saepio may suspend the supply of Services under the Contract or any other
contract between the Customer and Saepio if:
• the Customer fails to pay any amount due under the Contract on the due date for payment;
• the Customer becomes subject to any of the events listed in clause 8.1(c) or clause 8.1(d), or Saepio reasonably believes that the Customer is about to become subject to any of them; and
• Saepio reasonably believes that the Customer is about to become subject to any of the events listed in clause 8.1(b).
9. Consequences of termination
9.1 On termination or expiry of the Contract: the Customer shall immediately pay to Saepio all Saepio’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Saepio shall submit an invoice, which shall be payable by the Customer immediately on receipt.
9.2 Termination or expiry of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
9.3 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
10. General
10.1 Force majeure
Neither party shall be liable for any delay or failure in the performance of its obligations for so long as and to the extent that such delay or failure results from events, circumstances or causes beyond its reasonable control. If the period of delay or non-performance continues for thirty (30) days, the party not affected may terminate this agreement by giving not less than seven (7) days written notice to the affected party.
10.2 Assignment and other dealings
The Contract may not be assigned, in whole or in part, by either party without the prior express written consent of the other party, such consent not to be unreasonably withheld, except however that either party may assign this Agreement in whole to: (a) an Affiliate; or (b) a successor in connection with a merger, consolidation, or acquisition of all or substantially all of the assigning party’s assets or business relating to the Contract, provided that such assignee is not a direct competitor of the other party. Any assignment in contravention of this clause 10.2 will be null and void.
10.3 Confidentiality
Each party undertakes that it shall not at any time during the Contract, and for a period of two years after termination or expiry of the Contract, disclose to any person any Confidential Information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 10.3(b).
Each party may disclose the other party’s Confidential Information:
• to its employees, officers, representatives, contractors, subcontractors, or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 10.3; and
• as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority (“Compelled Disclosure”) provided the party being required to make the Compelled Disclosure: (i) first notifies the other party (to the extent such notice is legally permitted; (ii) reasonably cooperates with the other party in contesting the Compelled Disclosure, at the other party’s request and expense; and (iii) in any event only discloses the minimum amount of Confidential Information needed to comply with the Compelled Disclosure.
Neither party shall use the other party’s Confidential Information for any purpose other than to perform its obligations under the Contract.
10.4 Entire agreement
The 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.
Each party acknowledges that in entering the 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 the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in the Contract.
10.5 Variation
Except as set out in these Conditions, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
10.6 Waiver
A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
10.7 Severance
If any provision or part-provision of the Contract is or becomes invalid, illegal, or unenforceable, it shall be deemed deleted, but
that shall not affect the validity and enforceability of the rest of this agreement. If any provision or part-provision of the Contract is deemed
deleted under this clause 10.7 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible,
achieves the intended commercial result of the original provision.
10.8 Notices
Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or sent by email to the address specified by Saepio to Customer.
Any notice or communication shall be deemed to have been received:
• if delivered by hand, at the time the notice is left at the proper address;
• 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
• if sent by email at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 10.8(b)(iii), business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
This clause 10.8 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
10.9 Third party rights
Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
10.10 Survival: clause 1, clause 7, clause 9, and clauses 10.3, 10.4, 10.6, 10.8, 10.9, 10.11, and 10.12 shall survive termination of the Contract.
10.11 Governing law
The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
10.12 Jurisdiction
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.
10.13 Data Protection
Each party warrants to the other that it shall, in connection with this Contract and any Quotation, comply with the provisions of all applicable Data Protection Legislation. The parties acknowledge and agree that the personal data processed under this Contract shall be limited to the business contact details of each party’s representatives, and solely for the purposes of contract administration, unless otherwise agreed in writing.
SCHEDULE 1
Saepio – Service Specific Terms and Conditions
Third Party Software Resales (“Resale Conditions”)
1. Interpretation
1.1 These Resale Conditions are supplemental to the Conditions and the applicable Quotation entered into between Saepio and the Customer.
1.2 Unless otherwise stated, all capitalised terms appearing in these Resale Conditions shall have the meaning given to them in the Conditions.
1.3 Definitions:
End User Agreement: the Third Party Supplier’s end user master services agreement (or similar documentation such as terms and
conditions) applicable to the Third Party Software and/or Third Party Software Services as stipulated in the Quotation or as otherwise made
available to Customer by Saepio.
Third Party IPR: any and all Intellectual Property Rights that are owned by or licensed by Third Party Suppliers which has been developed in
connection with the Third Party Software and/or Third Party Software Services and independently of the Contract.
Third Party Software Services: certain third-party services (other than the Services) that Saepio procures for the Customer, including, but
not limited to, software-as-a-service solutions and ongoing support and/or maintenance services.
Third Party Software: certain third-party software that Saepio procures for the Customer including but not limited to, downloadable
software.
Third Party Supplier: a third-party manufacturer and/or licensor of the Third Party Software and/or Third Party Software Services.
2 Provision of Third Party Software and Third Party Software Services
2.1 Saepio will procure the Third Party Software and/or the Third Party Software Services for Customer in accordance with the Contract. Customer must comply with the relevant Third Party Supplier End User Agreement applicable to the Third Party Software and/or Third Party Software Services. Saepio will inform Customer of the relevant agreement, but it is Customer’s responsibility to enter into and comply with all of its terms.
2.2 Where Saepio procures Third Party Software and/or Third Party Software Services on Customer’s behalf, Customer must provide written authorisation, and warrant that the person giving this authorisation has the right to do so on Customer’s behalf.
2.3 Subject to clause 3.2 of the Conditions, Saepio will use reasonable endeavours to deliver the Third Party Software and/or Third Party Software Services to Customer by the delivery date specified in the Quotation. Such delivery will be deemed to have taken place when: (i) the licence key to use the Third Party Software is made available to Customer; or (ii) once the Third Party Software is made available to Customer for downloading; or (iii) in the case of Third Party Software Services, where Customer is granted access to the Third Party Supplier’s platform.
2.4 Customer’s use of the Third Party Software and/or Third Party Software Services (including duration of use – i.e., the term) (“Scope of Use”) is governed solely by the relevant End User Agreement provided by the Third Party Supplier and to the extent there is any conflict between these Resale Conditions and the relevant End User Agreement in respect of the Scope of Use, the End User Agreement will prevail. Customer is responsible for complying with the End User Agreement (including any term autorenewals contained therein) which is separate to any Contract which Customer enters into with Saepio.
2.5 The Charges for the Third Party Software and/or Third Party Software Services will be outlined in the Quotation and shall be paid by Customer to Saepio in accordance with clause 5 of the Conditions.
3 Intellectual Property Rights
3.1 Customer agrees that Saepio may incorporate Third Party IPR into a Quotation which Saepio provides to Customer. Such rights to use Third Party IPR are created between Saepio and Third Party Suppliers’ independently of the Contract.
3.2 Customer acknowledges that: (i) all Third Party IPR of whatever nature, whether in the Quotation, Third Party Software and/or Third Party Software Services shall be and remain vested in the Third Party Supplier; and (ii) that any use of Third Party IPR by Customer is subject to and governed by the End User Agreement that Customer enters into with the Third Party Supplier.
3.3 Customer shall indemnify, defend and hold Saepio and its directors, officers, employees and agents harmless from any loss (of any kind), cost, damage or expense (including, but not limited to, attorneys’ fees and expenses) which Saepio may suffer as a result of Customer’s use of Third Party IPR in contravention of the applicable End User Agreement.
4 Liability
4.1 This section is to be read in conjunction with Clause 7 of the Conditions.
4.2 Saepio acts solely as an independent reseller in regard to the Third Party Software and Third Party Software Services. The Third Party Supplier will be responsible for providing, and delivering to Customer, the Third Party Software and/or Third Party Software Services in accordance with the relevant End User Agreement, and Customer will look solely to the Third Party Supplier for any loss, claims or damages arising from or related to the provision of such Third Party Software and/or Third Party Software Services.
4.3 Except as set forth in the Contract, and subject to applicable laws, and liabilities which cannot be limited (as set out in clause 7.3 of the Conditions) Saepio makes no other, and expressly disclaims all other, representations warranties, conditions an covenants, either express or implied (including without limitation, any express or implied warranties or conditions of fitness for a particular purpose, satisfactory quality, accuracy or non-infringement), arising out of, or related to, the Third Party Software and/or the Third Party Software Services or their performance or non-performance.
4.4 Customer acknowledges that no representative of Saepio is authorised to make any representation or warranty that is not in the Contract.
SCHEDULE 2
Saepio – Service Specific Terms and Conditions
Managed Services (“Managed Services Conditions”)
1 Interpretation
1.1 These Managed Services Conditions are supplemental to the Conditions and the applicable Quotation entered into between Saepio and the
Customer.
1.2 Unless otherwise stated, all capitalised terms appearing in these Managed Services Conditions shall have the meaning given to them in the
Conditions.
1.3 Definitions:
Managed Services: managed security awareness training, cyber resilience consultancy services, and any other such managed or professional services provided by Saepio from time to time via, or in connection with, the Third Party Provider Platform as outlined in the relevant Quotation.
Service Level Agreement: the Third Party Provider’s agreement with Customer for the provision of support services in relation to the Third Party Provider Platform as incorporated into the Third Party Provider Terms.
Third Party Provider: the third-party manufacturer and/or licensor of the Third Party Provider Platform.
Third Party Provider IPR: any and all Intellectual Property Rights that are owned by or licensed by the Third Party Provider which has been developed in connection with the Third Party Provider Platform and independently of the Contract.
Third Party Provider Platform: the online portal which Customer may be granted access to by Saepio for the provision of the Managed Services.
Third Party Provider Terms: the specific terms and conditions of the Third Party Provider applicable to Customer’s use of the Third Party Provider Platform, as stipulated in the Quotation or as otherwise provided by Saepio to Customer.
2 Provision of the Managed Services
2.1 Saepio will provide the Managed Services in accordance with the Contract. Customer must comply with the Third Party Provider Terms applicable to the Third Party Provider Platform. Saepio will inform Customer of the relevant terms, but it is Customer’s responsibility to enter into and comply with all of its terms.
2.2 Saepio will use reasonable endeavours to assist Customer if there are any disruptions in the availability of the Third Party Provider Platform.
However, The Third Party Provider is ultimately responsible for maintenance and support services related to the Third Party Provider Platform. As such, Saepio cannot provide guarantees as to the Third Party Provider Platform’s availability and uptime; these are governed by the Service Level Agreement.
2.3 The Charges for the Managed Services will be outlined in the Quotation and shall be paid by Customer to Saepio in accordance with clause 5 of the Conditions.
3 Customer Obligations
3.1 The Customer shall:
• provide Saepio with such information, materials and/or resources (including but not limited to access to people of appropriate skill and access (typically via remote screen sharing) to Customer’s computer systems, devices, and network as necessary to perform the Managed Services) as Saepio may reasonably require in order to supply the Managed Services in a timely manner, and ensure that such information is complete and accurate in all material respects;
• provide information on any security constraints that Saepio must adhere to; and
• implement effective and appropriate backup procedures for the protection of its data.
3.2 The Customer shall procure, and shall maintain, all necessary rights, consents, and approvals necessary for Saepio to use or host any
software, documentation, and/or other materials provided by Customer to Saepio for use in the provision of the Services.
4 Liability
4.1 This section is to be read in conjunction with clause 7 of the Conditions.
4.2 Saepio acts solely as a provider of Managed Services in regard to the Third Party Provider Platform. The Third Party Provider is responsible for maintaining and servicing the Third Party Provider Platform in accordance with the Third Party Provider Terms and the Service Level Agreement. As such, Customer will look solely to the Third Party Provider for any loss, claims or damages arising from or related to the use of the Third Party Provider Platform.
4.3 Except as set forth in the Contract, and subject to applicable laws, and liabilities which cannot be limited (as set out in clause 7.3 of the Conditions) Saepio makes no other, and expressly disclaims all other, representations warranties, conditions an covenants, either express or implied (including without limitation, any express or implied warranties or conditions of fitness for a particular purpose, satisfactory quality, accuracy or non-infringement), arising out of, or related to, the Third Party Provider Platform or its performance or non-performance.
4.4 Customer acknowledges that no representative of Saepio is authorised to make any representation or warranty that is not in the Contract.
5. Charges
5.1 Unless otherwise specified in the Quotation, Saepio reserves the right to increase the Charges on an annual basis with effect from each anniversary of the Commencement Date in line with the latest available figure for the percentage increase in the Consumer Prices Index in the preceding 12-month period.
5.2 Unless otherwise specified in the Quotation, the Managed Services, if subject to a defined term of service, will automatically renew for twelve (12) month periods (the “Renewal Term(s)”) following expiry of the then current term (as outlined in the associated Quotation), unless the Customer provides written notice to Saepio at least sixty (60) days prior to the end of the then current term stating its intention of non-renewal. Charges in any Renewal Term(s) will be subject to these Conditions, in particular, condition 5.1 above.
5.3 Where Services are purchased on a retainer basis, they will be invoiced in full before commencement of the Services.
6. Intellectual Property Rights
6.1 Customer agrees that Saepio may incorporate Third Party Provider IPR into a Quotation which Saepio provides to Customer. Such rights to use Third Party Provider IPR are created between Saepio and Third Party Provider(s) independently of the Contract.
6.2 Customer acknowledges that: (i) all Third Party Provider IPR of whatever nature, whether in the Quotation and/or Third Party Provider Platform shall be and remain vested in the Third Party Provider; and (ii) that any use of Third Party Provider IPR by Customer is subject to and governed by the Third Party Provider Terms that Customer must adhere to.
6.3 Customer shall indemnify, defend and hold Saepio and its directors, officers, employees and agents harmless from any loss (of any kind), cost, damage or expense (including, but not limited to, attorneys’ fees and expenses) which Saepio may suffer as a result of any breach by Customer of any of the Third Party Provider Terms related to Customer’s use of the Third Party Provider Platform whilst receiving the Managed Services.
7. Termination
7.1 Where Services are bought on a retainer basis and have not been used by the Customer within twelve (12) months of the invoice date, and reasonable endeavours to deliver the Services have been undertaken by Saepio, without affecting any other right or remedy available to it, Saepio may terminate the Contract by giving written notice to the Customer; in such instance, no refunds will be payable to the Customer for any prepaid Charges.
CE & CE+ 