Vysiion Ltd Remote Backup Service Service Level Agreement Backing up and protecting data is a critical part of maintaining your organisation s IT system. The Vysiion Remote Backup Service (RBS), is a resilient, structured and reliable on line solution. What the Service Provides: The Vysiion Ltd Remote Backup Service (RBS) provides customers with a scheduled backup to a secure off site RBS Data Store. The service uses a broadband connection between customers file servers and the RBS server. The primary Vysiion RBS Data Store is continually backed up via a Vysiion Replication Server and Data Store, located at a second secure off site data centre. Data backup is automatic and scheduled daily, normally between 7.00pm and 7.00 am or when most customer network activity is low. Dependent on the amount of data to be backed up, a Vysiion engineer may visit site(s) and take an initial full back up using a storage device. This will then be taken back to the Vysiion data centre and uploaded via the RBS server to the RBS Data Store. The customer s server will then be set to upload a daily incremental backup, updating the remote backup copy in the Vysiion Data Store. Because the incremental backup only records changes to files on your system, the amount of data being exchanged will be smaller than needed for a full download. Customers receive a daily automated email confirming the status of the backup and identifying any issues that may have occurred. In the event of an unsuccessful backup, Vysiion will investigate and report back to the customer by the end of the next working day. It is important to stress that the integrity of the data held from the previous day s backup will remain intact. The data is encrypted before being sent to the Vysiion RBS, and stored in encrypted format. This ensures the integrity and security of data at all times, during a routine backup transfer, whilst held in the Vysiion Data Store, and in the event of data being recovered. The Vysiion Remote Backup Service provides a secure, encrypted fully replicated data store. The Service is offered based on the Description and Reference Documents - Appendix 1 Form of Agreement, Appendix 2 RBS Service Level Agreement, the Remote Back-up Service Standard Terms & Conditions of Sale and the RBS Price Matrix. Vysiion005_Iss3.0 1 Vysiion Ltd
Appendix 1 Form of Agreement Agreement for the Provision of Vysiion Remote Backup Service THIS AGREEMENT consisting of the following: i) Form of Agreement; ii) General Terms and Conditions for the Supply of IT Services and Appendices, attached below as duly executed the last date of signature below: Parties: 1. ***** whose address is: hereinafter called the End User 2. Vysiion Ltd of: Connect 17, Avon Way, Langley Park, Chippenham, SN15 1GG hereinafter called the Service Provider VAT No. 6671 326 27 Commencement Date: ****** Remote Backup Storage: The Vysiion Remote Backup Service shall commence no later than thirty (30) days from the Effective Date (being the date of last signature by the signatories to this Agreement). Storage Size **** **** Number of Servers Mail Level Backup CALs 1 N/A N/A N/A Initial Term: Term: RBS Initial Set up Fee Service Fee (ex. VAT) (Paid Annually): 1 year from the Commencement Date This Agreement shall take effect on the Effective Date and shall remain in force for the Initial Term. Thereafter, the Agreement shall be extended automatically for further periods of 12 months unless the End User gives the Service Provider at least thirty (30) days written notice before the expiry of the Initial Period or any extension thereof. N/A N/A The Service Provider shall be entitled to amend its charges on each anniversary of the Commencement Date by giving the End User at least forty five (45) days written notice before the expiry of any extension of the Initial Period. Vysiion005_Iss3.0 2 Vysiion Ltd
Additional Fees (ex. VAT) (Paid Annually): Details of Service Provided: N/A Remote Backup Service: Remote Backup Secure hosted automated back-up service including Microsoft Exchange Support Service: Account Administration Support Desk Mon-Fri 9:00-16:30 excluding Bank Holidays Tick applicable Payment Terms: End User Purchase Order Number: (Required for all orders) End User Invoice Address: (Address you require the invoice to be sent) The Initial Set-Up Fee will be invoiced with the first annual Service Fee. All annual Service Fees will be invoiced annually in advance. Any other charges will be invoiced as incurred. ***** Background (A) The End User has agreed to purchase the Vysiion Remote Backup Service; and (B) The End User wishes to appoint the Service Provider to provide the Support Service (as defined above). The End User shall pay the Fees for the Term of this Agreement in accordance with the Payment Terms. This Agreement shall be governed by and interpreted under English law and the parties submit to the exclusive jurisdiction of the courts of England and Wales. Vysiion005_Iss3.0 3 Vysiion Ltd
IN WITNESS of which this Agreement has been duly executed by the Parties. SIGNED for and on behalf of ******** SIGNED for and on behalf of Vysiion Ltd Signature... Signature Name.. Name..Jane Lockwood. Position... Position..Customer Services Manager.. Date. Date. Vysiion005_Iss3.0 4 Vysiion Ltd
Appendix 2 RBS Service Level Agreement The Service Provider will provide the Remote Backup Service in accordance with the service levels set out in this Appendix 1. 1. Service Provider s Fault Call Handling Process 1.1. The Service Provider will: 2. Standards of Service 1.1.1. provide technical support during a Working Day via email (support@rflcomms.co.uk) and by telephone (01249 446500). 1.1.2. use reasonable efforts to respond to all issues notified by the End User either by email, or telephone or via its Service Management System within 1 Working Day. 2.1. The Service Provider will provide such preventative and corrective maintenance services as it reasonably considers necessary for the proper functioning of the Remote Backup Service. 2.2. The Remote Backup Service is subject to the standard of the connection utilised by the End User and the Service Provider will not be held liable for any problems associated with the bandwidth or connectivity of broadband or other connections or networks. 2.3. Remote Backup is subject to the network provided by its hosting partners and the Service Provider will not be held liable for any problems associated with the bandwidth or connectivity of their networks or other connections or networks. 3. User Connection and Management 3.1. The Service Provider aims to provide all set-up and upgrade services within as short a period as possible, as detailed in the table below. The service level parameters specified are target times and not firm commitments and whilst the Service Provider shall use its reasonable endeavours to respond within the timescales specified it shall not be liable to the End User in respect of any failure to meet such parameters. 3.2. Where the Service Provider is requested to undertake this work the following will apply: Service Parameters Time for new End User account set-up Time increasing End User storage space Standard Service Minimum 5 Working Days 2 Working Days Vysiion005_Iss3.0 5 Vysiion Ltd
4. Fault Categories & Target Clearance Times 4.1. The Service Provider shall use reasonable endeavours to resolve Remote Backup server faults within the timescales detailed below: Category Definition Target Clearance Time Period of Cover 5. Security of Data Critical Fault Total loss of service 4 hrs 24 hrs/day 7 days/wk 365 days/annum Minor Fault Partial loss of service 24 hrs 08:00-20:00 hrs Normal Working Day 5.1. The Remote Backup service is configured so that data is replicated over two sites. All data is encrypted using 256-bit encryption methods. 5.2. End User data stored and hosted by the Service Provider in the course of provision of Remote Backup will be the property of the End User and will be held securely by the Service Provider on the End User s behalf. 5.3. The Service Provider adheres to the principles of the Data Protection Act 1998 (as amended from time to time) and complies with industry best practice for managing information. 6. Data Removal 6.1. Following expiry or termination of the Contract, the Service Provider will delete all of the End User s data from the Service Provider s storage facilities within 15 days from the date of expiry or termination of the Contract. Vysiion005_Iss3.0 6 Vysiion Ltd
General Terms and Conditions for the Supply of IT Services 1. Definitions and Interpretation 1.1. In these Terms and Conditions, except where the context otherwise requires, the following definitions shall apply: Business Day means a day, other than a Saturday or Sunday, when the banks are open for general business in the City of London; Charges means the charges set out in the Contract; Contract means the contract formed between the Service Provider and the Customer made up by the Form of Agreement or Master Agreement as appropriate, these terms and conditions together with the description of the services and any other schedules attached to the Form of Agreement or Master Agreement; Customer means the company who purchases the support services from the Service Provider, as specified in the Contract; "Documentation" means any documentation describing any items, their configuration or licensing and warranty within the Services provided by the Service Provider to the Customer; Initial Term means the term specified as such in the Contract. The Initial Term shall commence on the Services Commencement Date; "Licensed Materials" means any software and/or Documentation licensed to the Customer under the Contract; Party means a party to the Contract and Parties shall be construed accordingly; Senior Representative means the representatives authorised on behalf of the Service Provider and the Customer to negotiate any disputes between the Parties in accordance with Clause 20; Services means the services to be provided by the Service Provider as detailed in the Services Specification; Services Commencement Date means the date specified in the Contract from which the Services shall be provided; Service Provider means Vysiion Ltd; Service Provider s Network means the Service Provider's host computers and network switches; Services Specification means the specification of the support services to be provided by the Service Provider as detailed in the Contract; Site means the place or places, made available by the Customer, at which work is to be done by the Service Provider, as detailed in the Contract; System means the Customer equipment and software which is the subject of the Services; and Term means the Initial Term and any extensions thereof. 1.2. As used in the Contract the masculine includes the feminine and the neuter and the singular includes the plural and vice versa. 1.3. Headings are included in the Contract for ease of reference only and shall not affect the interpretation or construction of the Contract. 2. Provision of the Services 2.1. The Service Provider undertakes to provide the Services: 2.1.1 using its own initiative and based on its experience of providing services similar to the Services and without any encouragement, request or similar action on the part of the Customer; Vysiion005_Iss3.0 7 Vysiion Ltd
2.1.2 in accordance with the Services Specification, the Service Level Agreement and with all provisions of the Contract; and 2.1.3 in accordance with all applicable UK and European laws and regulations, using good quality materials, techniques and standards and with the degree of care, skill and diligence which would reasonably and ordinarily be expected from a skilled and experienced contractor engaged in the provision of services similar to the Service. 3. Customer s Obligations 3.1. Unless explicitly described as the Service Provider s obligation under the Contract, the Customer shall: 3.1.1. be solely responsible for the operation, supervision, management and control of the System during the Term and shall ensure that the System is used in a proper manner by appropriately trained staff; 3.1.2. perform the operational maintenance routines specified in the System handbooks or as instructed by the Service Provider; 3.1.3. maintain the environmental conditions for the System as specified by the equipment manufacturer in any System documentation or as instructed by the Service Provider. 3.2. Subject to the Customer s operational requirements, the Customer shall provide the Service Provider with such full and free access as the Service Provider may reasonably require, to: 3.2.1. the System at the appropriate Site; 3.2.2. the appropriate Customer s staff; 3.3. The Customer shall notify the Service Provider of any changes to the IT infrastructure, systems and services covered under the terms of the Contract that might affect the ability of the Service Provider to meet its obligations to the Customer. 3.4. The Customer at its own cost shall provide such telecommunication facilities as are reasonably required by the Service Provider for remote access testing and remote diagnostics. 4. Data Protection 4.1. The Customer shall comply with the Data Protection Act 1998 and the Telecommunications Regulations 1999, and any amendments or replacements thereof, including any legislation implementing Directive 97/66/EC in relation to the services operated by the Customer 4.2. The Customer agrees that the Service Provider or its authorised representative may put the Customer's name and other information obtained about it from the proposal and sales process into a computerised directory for internal use only, until the Service Provider or its authorised representative receives specific written instructions to the contrary from the Customer. 4.3. The Service Provider accepts no responsibility for the loss or damage of data, due to hardware failure, file degradation, file damage, Customer misuse or accidental deletion. 5. Extent of Servicing Obligations 5.1. The Service Provider shall use its reasonable endeavours to provide prompt and continuing Services but will not be liable for any loss of profit or loss of data resulting from ISP outages, or service interruptions caused by events beyond the control of the Service Provider or outside the Service Provider s Network, or due to errors or omissions of the Customer. 5.2. The Service Provider shall not be responsible for what occurs at the ISP, or if an operator's telephone network is non-operational. 5.3. From time to time certain servers, or the whole or part of the Service Provider s Network Vysiion005_Iss3.0 8 Vysiion Ltd
used by the Service Provider to provide the Services may be closed down for routine repair or maintenance work. The Service Provider or its authorised representative shall give as much notice as in the circumstances is reasonable (ideally a minimum of 48 hours) and the Service Provider shall endeavour to carry out such works during the scheduled maintenance periods as published by the Service Provider from time to time. 5.4. The Service Provider may exercise its right not to perform the Services and/or to charge the Customer for the Service Provider s time and material expenditure, reasonably incurred, if: 5.4.1. on arrival at the appropriate Site or upon connection to the appropriate Site (via remote access), the Service Provider s service engineer finds that sufficient and proper access to the System and/or the recommended environmental conditions are not provided; or 5.4.2. the Customer has not been performing its obligations (in accordance with Clause 3); or 5.4.3. following receipt of a fault call, the fault call is found to be unwarranted due to a user error or the fault not being in the System. 5.5. The Services are provided subject to: 6. Security 5.5.1. the proper use of the System by the Customer and its personnel, agents and sub-contractors; 5.5.2. the System not being modified in any way without the Service Provider s prior approval; 5.5.3. the Customer not being in default of its obligations under the Contract. The Service Provider reserves the right to alter security measures, including passwords, for the Services at any time and to advise the Customer of these changes as soon as it is able. 7. Licensed Materials 7.1. If the Service Provider supplies software to enable the Customer to connect to the Service Provider s Network, the Service Provider hereby grants to the Customer a nonexclusive license to use the Licensed Materials as permitted herein. 7.2. The Customer may use the software to connect to the Service Provider s Network and use the software in the manner for which it was designed and make copies of the software for the purpose of backup only. The Customer may not sell, assign, transfer, lease, grant licenses over or distribute the software to third parties without the written permission of Service Provider for which a fee maybe payable. 8. Additional Services 8.1. The Customer may from time to time request that the Service Provider supplies various additional services. 8.2. The Parties agree that any such additional services shall be documented by way of a separate Contract variation and shall be chargeable by the Service Provider on a time and materials basis in accordance with the rates specified in the Contract, if applicable. Where rates are not contained in the Contract or are not applicable then the applicable rates shall be advised by the Service Provider and detailed in the order issued by the Customer. Such rates shall be in all circumstances reasonable. 8.3. The scope of any additional services to be performed by the Service Provider shall be mutually agreed between the Parties but any estimate of the costs for performing such additional services provided by the Service Provider shall be construed as approximate and shall not be binding on the Service Provider. 8.4. If the Customer accepts the scope and charges of such additional services, Vysiion shall document the relevant addition or amendment to the Services and, following signature by both Parties, this shall constitute an agreed variation to the Services. Until Vysiion005_Iss3.0 9 Vysiion Ltd
and unless such variation is signed by both Parties all discussions, communications and clarifications between the Parties regarding such addition or amendment shall be treated as subject to contract and shall not create a binding obligations on the Parties. No additional services shall be carried out by the Service Provider except as directed by a duly signed Contract variation. 8.5. Any variation to the Services duly signed by both Parties shall form part of the Contract and shall be governed by the terms of the Contract. 9. Payment of the Charges 9.1. In consideration of the supply of the Services in accordance with the terms of the Contract, the Customer shall pay the Charges in accordance with and subject to the payment terms specified in this Clause 9. 9.2. The Charges are stated exclusive of VAT, which shall be added at the prevailing rate as applicable. 9.3. The Customer shall pay all sums owed to the Service Provider in full within 30 days of receipt of a valid invoice and without deduction, set-off or abatement. 9.4. Interest shall be payable on any late payments at the rate of 3% per annum above the London Interbank Offered Rate (LIBOR) from time to time in force. 9.5. The Service Provider shall be entitled to increase the Charges with effect from each anniversary of the Commencement Date in accordance with the percentage change in the Retail Price Index (all items excluding mortgage interest payments) ( RPIX ) published by the Office for National Statistics (or such index as replaces the same) in the 12 months immediately preceding that anniversary. In the event that the application of the percentage change in RPIX would result in a reduction of the Charges, the Charges shall remain unchanged until the next anniversary of the Commencement Date. 10. Intellectual Property Rights and Intellectual Property Rights Infringement 10.1. The Service Provider shall at all times, both during and after the Term, retain ownership and all intellectual property rights in the Licensed Material, the Documentation, the Services and other intellectual property and the Customer acknowledges and agrees that it will, at no time, obtain any intellectual property rights in any of the same. 10.2. In the event that new inventions, designs or processes evolve in the performance of or as a result of the Contract, the Customer acknowledges that the same shall belong to the Service Provider unless otherwise expressly agreed in writing by the Service Provider. 10.3. The Customer shall indemnify the Service Provider fully against all liabilities of any nature whatsoever, including (without limitation) all costs and expenses which the Service Provider may incur as a result of the Customer's infringement of any patent, trademark, trade names, copyright and all other intellectual property rights belonging to the Service Provider or any other proprietary right of any third party forming part of any activities or information provided by the Service Provider. 11. Warranties 11.1. The Customer warrants and agrees that it will: 11.1.1. ensure that the Services and the Service Provider s Network are not used to store any unlawful, harassing, libellous, obscene, tortious, or otherwise objectionable content, or content that infringes or may infringe the intellectual property rights or other rights of any third party and shall ensure that it is at all times only used in accordance with all applicable laws and advertising practices; 11.1.2. comply with any data protection legislation or other law, regulation or order which may be applicable to the use of the Services by the Customer; 11.1.3. use the Services only for its own internal business purposes and will not operate Vysiion005_Iss3.0 10 Vysiion Ltd
it on behalf of any third party or permit access and use by any person other than an authorised representative of the Customer; 11.1.4. use all reasonable endeavours to ensure that it does not import any virus into the Service Provider's Network. 11.2. The Customer acknowledges that the Service Provider is unable to exercise control over the content of information passing over the Service Provider s Network or via the Services, and the Service Provider hereby excludes all liability of any kind for the transmission or reception of infringing information of whatever nature. 11.3. The Service Provider warrants and agrees that: 11.3.1. the Services will materially perform the functions set out in the Services Specification; and 11.3.2. it will provide the Services in accordance with the Service Level Agreement. 11.4. The Service Provider specifically excludes any warranty: 11.4.1. as to the accuracy of information transmitted through the Services; or 11.4.2. that the Services are or shall be fit for the purpose of the Customer. 11.5. Each Party warrants that it has full capacity and authority to enter into and to perform the Contract and that the Contract is executed by a duly authorised representative of such Party. 11.6. To the maximum extent permitted by law, all implied conditions, warranties, terms and undertakings, by law or otherwise in respect of the subject matter of the Contract are hereby excluded. 12. Amendments The terms of the Contract may only be amended if such amendment is in writing and signed by a duly authorised representative of each Party. 13. Limitation of Liabilities 13.1. Neither Party excludes or limits liability to the other for: 13.1.1. death or personal injury caused by its negligence, or that of its employees, agents or sub-contractors; 13.1.2. fraud or fraudulent misrepresentation; or 13.1.3. any liability which may not be excluded or limited by law. 13.2. Subject always to Clause 13.1, the aggregate liability of each Party in respect of: 13.2.1. all defaults resulting in direct loss of or damage to the tangible property of the other under the Contract shall in no event exceed the sum of 1,000,000; 13.2.2. all other claims, losses or damages, whether arising from tort (including negligence), breach of contract or otherwise under or in connection with the Contract shall in no event exceed an amount equal to the aggregate total of the Charges (as determined at the date on which the liability arises). 13.3. Nothing in the Contract shall limit either Party s obligation to pay any sums properly due in accordance with the Contract as and when they fall due for payment. 13.4. Subject always to Clause 13.1, in no event shall either Party be liable to the other for: 13.4.1. indirect or consequential loss or damage; and/or 13.4.2. loss or corruption of data; and/or 13.4.3. loss of profits, business, revenue, goodwill or anticipated savings. 13.5. Except as otherwise expressly provided in the Contract, all remedies available to the Service Provider or to the Customer for any breach of the Contract are cumulative and may be exercised concurrently or separately and the exercise of any one remedy shall Vysiion005_Iss3.0 11 Vysiion Ltd
not exclude the exercise of any other remedy. 13.6. Neither Party shall be liable for any breach of its obligations under the Contract to the extent that such breach is caused by a failure or delay by the other Party in performing its obligations under the Contract provided and to the extent that the affected Party notifies the other Party of such failure or delay within 30 days of the affected Party becoming aware of its occurrence and of its likely impact. 14. Indemnity 14.1. The Customer shall indemnify, defend, and hold harmless the Service Provider from and against all liabilities, damages, and costs (including settlement costs and reasonable legal fees) arising out of any claim by a third party against the Service Provider regarding Customer data, or the Customers' use of the Services in violation of the Contract and the Customer undertakes to ensure that all persons authorised by the Customer to use the Services operate it in an appropriate way. 14.2. The Customer acknowledges that content of messages must be strictly controlled so as not to give rise to legal consequences, and that from time to time the Service Provider may issue notices in this regard. 14.3. The Customer is also responsible for, and shall indemnify the Service Provider against, any liability arising from: 15. Term and Termination 14.3.1. the Customer failing to ensure that it is running services which fully comply with any of the applicable codes of practice and the rules of the relevant regulatory body and any relevant legal obligations; 14.3.2. the Customer failing to provide the Service Provider with full descriptions of their service, including marketing details. 15.1. The Contract shall remain in force for the Initial Term. Thereafter, the Contract shall be extended automatically for further periods of 12 months unless the Customer gives the Service Provider at least 30 days written notice before the expiry of the Initial Term or any extension thereof. 15.2. Without prejudice to any other rights that either Party may have under the Contract or at law, either Party may terminate the Contract immediately by written notice to the other if: 15.2.1. the other Party commits a material breach of the Contract and, where such breach is capable of remedy, has not rectified the breach within 30 days of being advised in writing of the breach; and/or 15.2.2. the other Party is unable to pay its debts as they become due, makes any voluntary arrangement with its creditors or becomes bankrupt, insolvent or the subject of a dissolution, administration order or has a receiver, manager or administrative receiver appointed over its assets or any part of its business or has a winding-up order made against it or goes into liquidation or if anything having a substantially similar effect to such events occurs. 15.3. Termination does not affect the obligation of the Customer to pay all sums due for all Services provided by the Service Provider prior to termination. 15.4. Upon termination of the Contract, howsoever caused, the Customer shall immediately stop all use of any Licensed Materials (if any) and use of the Services owned by the Service Provider and promptly return to the Service Provider (or at the Service Provider's option destroy and certify in writing to the Service Provider that it has destroyed) the original and all copies of any Licensed Materials, including but not limited to all archival copies, compilations, translations, partial copies, updates, and modifications, if any, and delete all copies of any such items from the Customer's computer hardware and any other hardware or storage facilities. Vysiion005_Iss3.0 12 Vysiion Ltd
16. Suspension 17. Title 16.1. The Service Provider shall, at its sole discretion and without prejudice to any other rights or remedies available to the Service Provider, be entitled to suspend provision of all or part of the Services forthwith without liability in the event that: 16.1.1. such suspension is for the purpose of carrying out scheduled or emergency maintenance provided that prior reasonable notice is given to the Customer; or 16.1.2. the Customer fails to make any payment when due and fails to remedy the default within 14 days of a notice requiring remedy, until payment in full is received; or 16.1.3. the Service Provider is entitled to terminate the Contract. 16.2. The Customer accepts that the Service Provider may suspend without liability any of the Services immediately at the request of the relevant regulatory body, if a service is the subject of a complaint, or appears to be in breach of the applicable codes of practice. Title to any goods delivered as part of the Services shall pass to the Customer when payment for such deliverables has been made in full. 18. Sub-contracting 18.1. The Service Provider shall be entitled to sub-contract any of its obligations hereunder but this shall not affect the Service Provider s obligations to the Customer and any liabilities under the Contract. 18.2. The Service Provider shall be responsible for all work, acts, omissions and defaults of sub-contractors as fully as if they were work, acts, omissions or defaults of the Service Provider. 19. Confidentiality Each Party agrees to keep the existence and terms of the Contract confidential and that all information, prices and data, of any nature, provided by one Party to the other hereunder shall remain the property of the disclosing Party and be treated as confidential by the recipient. Any such information, prices and data shall be used solely for the purpose for which it is supplied unless identified otherwise by the disclosing Party. The obligations of the Parties with respect to the non-disclosure and non-use of such confidential information shall not apply in relation to information already in the public domain or where such disclosure is otherwise required by a court of law or statute to be disclosed. 20. Dispute Resolution 20.1. If any dispute, difference or question arises in connection with the Contract the Parties shall enter in good faith into discussions to attempt to resolve such dispute as soon as possible. If such dispute, difference or question is not resolved within 14 days of being raised as a disputed matter the Parties shall escalate the dispute to their respective Senior Representative who will attempt to settle the dispute in good faith within 14 days of its escalation. 20.2. In the event that the Senior Representatives of the Parties do not settle the dispute within the allotted time, either Party may commence court proceedings or arbitration. 20.3. Notwithstanding clause 20.1, either Party may at any time apply to any court of competent jurisdiction for injunctive relief in the event of an alleged breach of the Contract or otherwise to prevent irreparable harm. 21. Force Majeure 21.1. Neither Party shall be liable to the other for failure to perform or delay in performing its obligations under the Contract if such failure results from circumstances beyond the Party's reasonable control including, but not limited to, any act of God, failure or shortage of power supplies, flood, lightning, fire, industrial disputes, act or omission of government, public telecommunications operators and other competent authorities, war, or civil disorder (an Event of Force Majeure ). Each Party shall bear all of its own Vysiion005_Iss3.0 13 Vysiion Ltd
22. Notices costs and expenses suffered or incurred due to such event. 21.2. The Customer shall not be liable to pay the Charges for any of the Services which the Service Provider is unable to perform during the circumstances set out in Clause 21.1. 21.3. If an Event of Force Majeure continues to prevent performance of the Contract for a period of 30 days, then the Party not subject to the Event of Force Majeure may terminate the Contract forthwith and without penalty. In such an event the Customer will pay all sums due for all Services provided by the Service Provider prior to termination. 22.1. All notices required or permitted under the Contract shall be in writing and shall be deemed to be given if delivered by hand, sent by first class prepaid post or by e-mail to the address or e-mail address of an authorised representative of the other Party or such other address as may be subsequently notified to the other Party in writing in accordance with this Clause. 22.2. Any notice shall be deemed to have been served as follows: 23. Non-solicitation 22.2.1. if delivered by hand on a Business Day, at the time of delivery to the address of the recipient; 22.2.2. if sent by first class prepaid post, within 2 Business Days after the date of posting; 22.2.3. if sent by e-mail on a Business Day, on successful transmission by the sender or if not on a Business Day, on the next Business Day following successful transmission by the sender. The Customer shall not (without the written consent of the Service Provider) either directly or indirectly solicit or entice away (or attempt to solicit or entice away) from the employment of the Service Provider any person employed or engaged by the Service Provider in the provision of the Services at any time during the Term or for a period of 12 months immediately following the expiry or termination of the Contract other than by means of a national advertising campaign. 24. Severability The various provisions of the Contract are severable and if any provision or part thereof is held to be invalid or unenforceable by any court of competent jurisdiction then such invalidity or unenforceability shall be severed from the Contract and will not affect the validity or enforceability of the remaining provisions or parts thereof in the Contract. 25. Waiver 25.1. The delay or failure of either Party to enforce any of its rights or remedies under the Contract shall not constitute a waiver thereof unless it is expressly stated to be a waiver and communicated to the other Party in writing in accordance with the provisions of Clause 22. 25.2. A waiver of a breach of any provision of the Contract shall not constitute a waiver of any subsequent breach of the same or of any other provision. 25.3. The rights of a Party under the Contract are cumulative and in addition to any other rights or remedies available to it at law or in equity. 26. Assignment The Customer shall not, without the prior written consent of the Service Provider, which shall not be unreasonably withheld, sell, assign, transfer or dispose of any or all of its rights or obligations hereunder. Vysiion005_Iss3.0 14 Vysiion Ltd
27. Relationship Of the Parties Nothing in the Contract shall create or be deemed to create a partnership, agency or joint venture between the Parties. Neither Party shall have authority to make representations, act in the name of, or on behalf of, or to otherwise bind the other Party. 28. Third Party A person who is not a Party to the Contract shall have no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract. This Clause does not affect any right or remedy of any person which exists or is available otherwise than pursuant to that Act. 29. Entire Agreement 30. Law The Contract constitutes the entire understanding between the Parties relating to the subject matter of the Contract and, save as may be expressly referred to or referenced herein, supersedes all prior representations, writings, negotiations or understandings with respect hereto, except in respect of any fraudulent misrepresentations made by either Party. The Contract shall be governed by and construed in accordance with English law and the Parties hereby submit to the exclusive jurisdiction of the courts of England. Vysiion005_Iss3.0 15 Vysiion Ltd