1.1 The definitions and rules of interpretation in this clause apply in the Agreement.
1.2 In the Agreement a reference to one gender shall include reference to every gender; words denoting a singular number include the plural and vice versa; references to persons shall include firms, companies and other organisations; a reference to a statutory provision includes a reference to the same as modified, re-enacted or replaced from time to time and any subordinate legislation made under it; a reference to a legal or regulatory body includes a reference to any successor body or bodies to it; headings shall not affect the interpretation of the Agreement; the words “include”, “includes”, “including” and “in particular” shall be construed as if they were followed by the words “without limitation”. Except as expressly provided in the Agreement, the rights and remedies provided under the Agreement are in addition to, and not exclusive of, any other rights or remedies, whether under the Agreement or provided by law.
2. USER SUBSCRIPTIONS
2.1 SDG hereby grants to the Customer a non-exclusive, non-transferable right to permit the Authorised Users to use the Services during the Subscription Term solely for the Customer’s internal business operations.
2.2 The Customer shall not:
provided that nothing in this clause 2.2 shall be deemed to prevent or restrict the Channel Partner from exercising its rights and carrying out its under its Channel Partner agreement
2.3 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify SDG.
2.4 The rights provided under this clause 2 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer.
3. SERVICES & GOODS
3.1 SDG shall, during the Subscription Term, provide the Services to the Customer on and subject to the terms of the Agreement.
3.2 SDG shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week.
3.3 SDG shall use its reasonable efforts to ensure that any maintenance activity which may interrupt access to the Services, shall not be performed during “Normal Business Hours” (9.00 am to 6.00 pm local UK time, Monday to Friday, excluding public holidays). The Customer acknowledges that SDG may interrupt access to the Services at any time to perform essential emergency maintenance.
3.4 Ownership of all goods shall remain vested in us (and we reserve the right to dispose of the goods) until we have received payment in full of all debts you owe to us.
4. CUSTOMER DATA
4.1 The Customer shall own all right, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.
4.2 If SDG processes any personal data on the Customer’s behalf when performing its obligations under the Agreement, the parties record their intention that the Customer shall be the data controller and SDG shall be a data processor and in any such case:
4.3 The Customer acknowledges that SDG collects and uses anonymised aggregate data relating to its customers” use of the Services.
5. THIRD PARTY PROVIDERS
For the avoidance of doubt, nothing in this clause 5 shall be deemed to exclude SDG’s obligations in respect of the Services marketed by a Channel Partner.
6. SDG’S OBLIGATIONS
6.1 SDG undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.
6.2 If the Services do not conform with the foregoing undertaking, Supplier will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking set out in clause 6.1. Notwithstanding the foregoing, SDG:
6.3 The Agreement shall not prevent SDG from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under the Agreement.
6.4 SDG warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under the Agreement.
7. CUSTOMER’S OBLIGATIONS
The Customer shall:
in order to provide the Services, including Customer Data, security access information and configuration services;
8. CHARGES AND PAYMENT
8.1 The Customer shall pay the Subscription Fees to SDG or the Channel Partner as the case may be in accordance with the Order and this clause 8. If the Customer pays the Subscription Fees to the Channel Partner, then all references to SDG in clause 8.2 shall be references to the Channel Partner.
8.2 The Customer shall on the Effective Date provide to SDG valid, up-to-date and complete credit card details or approved purchase order information acceptable to SDG and any other relevant valid, up-to-date and complete contact and billing details and, if the Customer provides:
8.3 If SDG has not received payment within 30 days after the due date, and without prejudice to any other rights and remedies of SDG:
8.4 All amounts and fees stated or referred to in the Agreement:
9. PROPRIETARY RIGHTS
The Customer acknowledges and agrees that SDG and/or its licensors own all intellectual property rights in the Services and the Documentation. Except as expressly stated herein, the Agreement does not grant the Customer any rights to, or in, patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services or the Documentation.
10.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under the Agreement. A party’s Confidential Information shall not be deemed to include information that:
10.2 Each party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of the Agreement.
10.3 Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of the Agreement.
10.4 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
10.5 The Customer acknowledges that details of the Services, and the results of any performance tests of the Services, constitute SDG’s Confidential Information.
10.6 SDG acknowledges that the Customer Data is the Confidential Information of the Customer.
10.7 No party shall make, or permit any person to make, any public announcement concerning the Agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including any relevant securities exchange), any court or other authority of competent jurisdiction.
10.8 The above provisions of this clause 10 shall survive termination of the Agreement, however arising.
11.1 The Customer shall defend, indemnify and hold harmless SDG against claims, actions, proceedings, losses, damages, expenses and costs (including court costs and reasonable legal fees) arising out of or in connection with the Customer’s use of the Services and/or Documentation, provided that:
11.2 SDG shall defend the Customer, its officers, directors and employees against any claim that the Services or Documentation infringes any patent effective as of the Effective Date, copyright, trade mark, database right and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:
11.3 In the defence or settlement of any claim, SDG may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate the Agreement immediately without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
11.4 In no event shall SDG, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
11.5 The foregoing states the Customer’s sole and exclusive rights and remedies, and SDG’s (including SDG’s employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
12. LIMITATION OF LIABILITY
12.1 This clause 12 sets out the entire financial liability of SDG (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer:
12.2 The Customer acknowledges that although the Services provided by SDG include various third party configurations or connections, SDG is not in any way responsible for these configurations or connections unless specified, including any security breaches or problems with implementation that may arise, these being outside of SDG’s control.
12.3 Except as expressly and specifically provided in the Agreement:
12.4 Nothing in the Agreement excludes the liability of SDG:
12.5 Subject to clause 12.2 and clause 12.4:
13. TERM AND TERMINATION
13.1 The Agreement shall, unless otherwise terminated as provided in this clause 13, commence on the Effective Date and shall continue for Subscription Term specified in the Order.
13.2 Without affecting any other right or remedy available to it, either party may terminate the Agreement with immediate effect by giving written notice to the other party if:
13.3 On termination of the Agreement for any reason:
14. FORCE MAJEURE
SDG shall have no liability to the Customer under the Agreement if it is prevented from or delayed in performing its obligations under the Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including strikes, lock-outs or other industrial disputes (whether involving the workforce of SDG or any other party), failure of a utility service or transport or telecommunications 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, fire, flood, storm or default of suppliers or sub-contractors, provided that the Customer is notified of such an event and its expected duration.
If there is an inconsistency between any of the provisions in the main body of the Agreement and the Schedules, the provisions in the main body of the Agreement shall prevail.
No variation of the Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
No failure or delay by a party to exercise any right or remedy provided under the Agreement 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 shall prevent or restrict the further exercise of that or any other right or remedy.
18. RIGHTS AND REMEDIES
Except as expressly provided in the Agreement, the rights and remedies provided under the Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
19.1 If any provision (or part of a provision) of the Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
19.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
20. ENTIRE AGREEMENT
20.2 Each of the parties acknowledges and agrees that in entering into the Agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to the Agreement or not) relating to the subject matter of the Agreement, other than as expressly set out in the Agreement.
21.1 The Customer shall not, without the prior written consent of SDG, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Agreement.
21.2 SDG 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 Agreement.
22. NO PARTNERSHIP OR AGENCY
Nothing in the Agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
23. THIRD PARTY RIGHTS
The Agreement does not confer any rights on any person or party (other than the parties to the Agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
24.1 Any notice required to be given under the Agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post, recorded delivery or email. SDG’s email address is email@example.com.
24.2 A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post.
25. GOVERNING LAW
The Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Agreement or its subject matter or formation (including non-contractual disputes or claims).
Version 2.0, 6th January 2020
| SDG (Service Desk Group) are also Cyber Essentials accredited certificate no: QGCE 3434|
|We take part in the CiSP run by the National Cyber Security Council. CiSP Cyber Security Information Sharing Partnership is a joint industry and government initiative|