Service Desk and NOC Services Agreement

Last updated:  November 2019

 

This agreement sets out the terms and conditions under which we, Inbay Limited (Inbay), provide technical helpdesk services (Service Desk Services) and/or network operations centre services (NOC Services) for our clients. These Service Desk Services and NOC Services are referred to as the Services.

Other than the ‘Order for Inbay Service Desk and NOC Services’ signed by the parties and attached to this agreement (and any documents attached to or referred to in it) (Order) and any other document referred to in this agreement, no terms or condition endorsed upon, delivered with or contained in any client purchase order, acknowledgement, offer or acceptance of offer, specification or similar document shall form part of this agreement.

1. SCOPE OF THE SERVICES

  • 1.1Inbay shall use its best endeavours to provide the Service Desk Services and/or NOC Services (as relevant) in all material respects as specified in the Order and the relevant Statement(s) of Work (SOW), and any other services agreed between the parties in writing from time to time.
  • 1.2Details of Service Desk Services (if applicable) are set out in the Service Desk Services Statement of Work (SOW) and/or details of the NOC Services are set out in the NOC Services Statement of Work (SOW) (if applicable).
  • 1.3The Services are provided to the Client or to a customer of the Client (Client Customer(s)) on the Client’s behalf as the Client’s subcontractor. The Client shall be responsible for managing the relationship between the Client and the Client Customers. The Client may resell the Services to its customers, but the contract for the provision of such Services shall be made direct between the Client Customer and the Client. Inbay shall have no direct contractual relationship with the Client Customer.
  • 1.4The Client shall make no further promises, warranties or representations to any Client Customer regarding the Services beyond those set out in this agreement. Breach of this clause shall be regarded as a material breach of this agreement warranting its immediate termination by Inbay giving written notice to the Client.
  • 1.5If any Client Customer requests Inbay to carry out any services on behalf of the Client beyond the scope of this agreement, Inbay will refer the matter to the Client who will be responsible for liaising with the Client Customer and managing the Client Customer’s expectations to ensure that the Services required of Inbay will fall again within the scope of this agreement. Alternatively, with the Client’s written agreement, Inbay may, in its sole discretion, elect to provide the requested additional services for a further fee.
  • 1.6The Client shall indemnify Inbay against all costs, claims, damages, losses and expenses arising as a result of any claim or action suffered by Inbay in the event that it is held to be acting as an agent of the Client or any third party in performing its obligations under this agreement.
  • 1.7 Inbay does not assume any responsibility for any services or products provided by the Client or any other third party suppliers.
  • 1.8 Inbay shall use reasonable endeavours to meet any performance dates specified in this agreement and any Order, but any such dates shall be estimates only and time shall not be of the essence.
  • 1.9 Inbay shall operate a staff vetting policy for all individuals it engages in relation to the Services, available upon request.
  • 1.10Inbay shall maintain a business continuity and disaster recovery plan, which it shall test on a regular basis and promptly implement any actions or remedial measures which it considers to be necessary as a result of those tests.

2. ACCREDITATIONS AND CERTIFICATIONS

  • 2.1 Inbay is ISO/IEC 27001:2013 certified under certificate number 14128991 as verified by the International Register of Quality Assessed Organisations (www.irqao.com) and it shall use its best endeavours to comply with all requirements under this accreditation in its performance of the Services.
  • 2.2Inbay is PCI DSS Merchant compliant and compliance is monitored on an ongoing basis. Verification of current compliance status is available on request.

3. DATA PROTECTION

  • 3.1In this Clause 3 Controller, Data Subject, Personal Data, Personal Data Breach, Processor and processing shall have the respective meanings given to them in applicable Data Protection Laws from time to time (and related expressions, including process, processed, processing, and processes shall be construed accordingly).
  • 3.2Use of the Services is governed by Inbay’s Privacy Policy which is available online at https://3.127.188.98/privacy-policy. By signing any Order, the Client acknowledges, understands and agrees to, Inbay processing any Personal Data under this Privacy Policy.
  • 3.3The Client acknowledges that Inbay may monitor, record, store and use any telephone, email or other communication with the Client or the Client Customers or any party providing goods or services to Inbay, the Client or the Client Customers in order to check any instructions or information given to Inbay, for training purposes, for crime prevention and to improve the quality of Inbay’s customer services. The Client undertakes to notify its employees, Client Customers and any related suppliers accordingly of such monitoring and recording.
  • 3.4Each party shall comply with all relevant “Data Protection Laws”, including the General Data Protection Regulation, the Data Protection Act 2018, any laws which implement any such laws and any laws that replace, extend, re-enact, consolidate or amend any of the foregoing. The Customer shall ensure all instructions given by it to the Supplier in respect of Protected Data (including the terms of this Agreement) shall at all times be in accordance with Data Protection Laws.
  • 3.5The parties acknowledge that the Client (as a Controller) shall determine the purpose for which and the manner in which all Personal Data made available by the Client and by any Client Customer to Inbay is used in performing the Services.
  • 3.6Inbay shall be the Processor of Personal Data and shall only process it in accordance with this agreement and the Schedule (and not otherwise unless alternative processing instructions are agreed between the parties in writing). Inbay does not have the right to use such Personal Data for any other purpose other than as set out in this agreement and Schedule unless notified in writing by the Client.
  • 3.7 Prior to processing any of the Personal Data, Inbay shall:
    • (a) ensure it has made all necessary notifications or registrations with relevant government authorities;
    • (b) put in place appropriate technical and organisational measures against accidental or unlawful destruction, loss, alteration and against all other unlawful forms of processing;
    • (c) put in place adequate security policies and procedures to ensure that unauthorised persons will not have access to the equipment used by Inbay to process the Personal Data and that any persons it authorises to have access to the Personal Data will respect and maintain its confidentiality;
    • (d) only engage with a sub-processor with the prior consent of the Client and the terms contained herein; and
    • (e) not disclose any of the Personal Data to any third parties, except where there is a legal or regulatory obligation to do so, in which case the Client must, where permitted by law, be informed prior to such disclosure.
  • 3.8 Inbay shall as soon as reasonably practicable:
    • (a) pass on to the Client any enquiries or communications (including subject access requests) from individuals relating to the Personal Data or its processing;
    • (b) provide such information as may be required for the purpose of responding to any individual or otherwise to comply with duties under the Act;
    • (c) amend, update, delete or supplement any Personal Data forthwith if the Client so requests in order to comply with the Act;
    • (d) respond to queries, complaints, requests to audit information relating to the Services and other correspondence in relation to the Personal Data only after consultation with, and in accordance with the instructions of, the Client, provided that the Client provides such consultation and instructions reasonably promptly; and
    • (e) Inform the Client if any instructions provided would infringe any applicable Data Protection Laws.
  • 3.9 The Client warrants and undertakes to Inbay that:
    • (a) the Personal Data has been and shall be obtained and processed (in so far as the Personal Data has been processed) lawfully;
    • (b) the Services to be provided by Inbay under this agreement will be entirely consistent with and appropriate to the specified and lawful purposes for which the Client has notified under the Dara Protection Laws in respect of the Personal Data as specified within the Schedule
    • (c) the Client has not and will not during the continuance of this agreement use or disclose the Personal Data or any part of it in a manner incompatible with the purposes as specified in the Schedule;
    • (d) the Personal Data is adequate, relevant and not excessive in relation to the purposes as specified in the Schedule; and
    • (e) the Personal Data is accurate and the Client shall keep such Personal Data fully up to date at all times during the continuance of this agreement.
  • 3.10The Client understands and agrees (and shall ensure that each Client Customer agrees) that the Personal Data may be transferred overseas (including outside the European Economic Area) as part of the Services, including (but not limited to) as part of the data input services to be provided by Inbay or by any third party carrying out hosting or other services for Inbay and that the Client and each Client Customer has obtained all necessary consents from data subjects in relation to such transfers of Personal Data. Where Inbay uses other sub-contractors/sub-processors for the Services which are based outside the EEA it shall liaise with such additional third-party suppliers at the Client’s reasonable request to ascertain what further steps, if any, are required to satisfy the Client as to how its Personal Data will be used and processed outside the EEA. Inbay shall ensure that where Personal Data is transferred overseas there are sufficient mechanisms and security systems in place to allow for a safe transfer to the third-party. A list of the current relevant third party suppliers is available on request.
  • 3.11Inbay shall notify the Client in the event of a data breach or an attempted data breach of its own infrastructure/systems and/or that of a third-party service or system, and/or its sub-contractors (where Inbay has been made aware of such a breach or attempted breach by the third-party service or system and/or by its sub-contractors). Inbay shall liaise with such third-party services or systems and/or its sub-contractors, to determine the exact nature of the data breach/attempted data breach to ascertain what further steps, if any, are required and will liaise with the Client as required in this respect.
  • 3.12Each party shall, indemnify and hold harmless the other party against any loss or damage suffered as a result of a breach of any data protection obligation contained in this agreement, or a breach of any applicable Data Protection Laws, to the extent that such breach is not caused by the negligence, omission or default of the injured party or its group companies, agents, sub-contractors and representatives.

4. CLIENT OBLIGATIONS

  • 4.1The Client will provide Inbay with all co-operation, information and documentation reasonably required for the provision and on-boarding of the Services. The Client will be responsible for procuring any third-party co-operation (including that of the Client Customers, where applicable) reasonably required for the provision and on-boarding of the Services.
  • 4.2The Client will be responsible for making sure that there are in place, either via itself or via its Client Customers, all suitable licences of third party software, hardware and/or systems which are required for the full use of the Services.
  • 4.3The Client shall appoint a manager for the Services (Services Manager) who shall have the authority to contractually bind the Client on all matters relating to the Services. For the avoidance of doubt, there is no direct contractual arrangement under this agreement between Inbay and any Client Customer and the Client’s Service Manager shall be responsible for conveying all relevant information relating to any Client Customer to Inbay.
  • 4.4The Client will be responsible for ensuring that their agreed on-boarding milestones are met by providing Inbay with all requested on-boarding information in the agreed format and according to the On-boarding Project Plan incorporated within this Agreement.

5. CHARGES AND PAYMENT

  • 5.1In consideration of the provision of the Services, the Client shall pay Inbay the fees set out or referred to in the Order or otherwise agreed between the parties in writing from time to time. The Client acknowledges that fees are variable, depending on the number of devices and/or users to which the Services relate and that the Services shall be subject to a minimum monthly payment equivalent to the full amount of devices agreed in the Order and the associated eQuote attached plus any applicable VAT or other relevant sales taxes.
  • 5.2The Client also acknowledges that fees for the minimum monthly payment along with all Services on-boarded up to the Go Live Date will be payable from the Go Live Date stated in the Order.
  • 5.3The Client will be charged an on-boarding fee as detailed within the Order and eQuote. Payment of the on-boarding fee is required within 5 days of receipt of the relevant invoice and before on-boarding can commence. In order to accommodate all Clients within the on-boarding queue in a fair and equitable manner, if payment is not received within 5 days of receipt of the relevant invoice, the Client acknowledges that they will lose their place in the on-boarding queue and Client’s on-boarding will be rescheduled for the next available date.
  • 5.4 Inbay reserves the right to increase its fees and/or minimum monthly payment for the Services not more than once in any 12-month period by giving the Client not less than one month’s prior written notice. Such increase shall be a reasonable amount, having regard to external factors, such as currency exchange rates.
  • 5.5Invoices for all Services are sent via email monthly in advance. Where any additional Services (for example additional devices, users or incidents) are added the fees will be amended on a pro-rata basis from the date of going live and shall be billed in full from the first day of the following month. Where the Client is based outside the UK in countries where the following currencies are used, Inbay will invoice the client in the relevant foreign currency: US/CAN/AUS dollars or Euros. In all other circumstances the Client will be billed in pounds sterling.
  • 5.6For clients based in the UK and Eurozone payment for both the minimum monthly payment and all monthly Services shall be made by Direct Debit. For clients based outside of the UK, payment shall be made by recurring credit card authorisation or bank transfer.
  • 5.7The Client must complete Inbay’s Direct Debit instruction or credit card authorisation form before Services can commence.
  • 5.8If the Client fails to pay any amount due under this agreement, Inbay shall be entitled but not obliged to:
    • (a) charge the Client interest on the overdue amount, payable by the Client forthwith on demand, from the due date up to the date of actual payment, after as well as before judgment, at the rate of 4% per annum above the base rate for the time being of the Bank of England. Such interest shall accrue on a daily basis and be compounded quarterly. Inbay reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998; and/or
    • (b) suspend provision of all or any part of the Services (whether to the Client and/or any Client Customer) until payment of all overdue sums has been made in full.
  • 5.9For the avoidance of doubt, all sums shall remain payable by the Client to Inbay notwithstanding that the Client may not itself have received payment from any Client Customer.
  • 5.10Any reasonable and properly incurred and documented third party costs and expenses shall be payable, provided that Inbay shall seek the prior written consent to any such expenditure wherever reasonably practicable and in any event where the costs or expenses to be incurred are in excess of £50.
  • 5.11If Inbay is prevented or delayed from performing its obligations under this agreement by reason of any act or omission of the Client or a Client Customer (other than in a Force Majeure Event, as defined in clause 8) then the Client shall pay to Inbay all reasonable costs, charges and losses sustained or incurred by Inbay as a result.
  • 5.12The fees are exclusive of VAT (and any other applicable taxes) which shall be due in addition at the prevailing rate, where applicable. Additional charges may be levied for incidental costs where agreed in advance in writing.
  • 5.13Inbay also reserves the right to ensure that, in order to maintain a good level of service for all clients, the Services are provided subject to reasonable use as shall be determined by Inbay in its sole discretion, having regard to usage by other clients and/or historic data/trending patterns. If it appears the Client is exceeding or is likely to exceed these reasonable usage levels, Inbay shall notify the Client and the Client shall implement a remedial plan (with its Client Customer, if relevant) to ensure that the Client/Client Customer does not exceed reasonable levels of use in the future. Inbay shall provide such guidance in this context as is reasonably required.

6. TERM

  • 6.1This agreement is effective upon signature of the initial Order. The Services will be provided from the Go Live Date specified in the Order. At the end of the Initial Term, the Services shall automatically continue indefinitely unless and until either party gives written notice to the other in accordance with the Order.
  • 6.2 This agreement may be terminated earlier in accordance with the provisions of clauses 1.4, 7 and 8.3.
  • 6.3The on-boarding process will begin when the signed Order together with the on-boarding fee are received from the Client and the Services will go live on the Initial Term Go Live Date. Details of the on-boarding process can be found here. It is the Client’s responsibility to ensure that Inbay receives all requested information to enable delivery of the Services in advance of the agreed Initial Term Go Live Date, as the Services will be chargeable in accordance with the on-boarding schedule referred to in the Order from this agreed date.

7. TERMINATION

  • 7.1Either party may terminate this agreement earlier, by notice in writing to the other, if any of the following events occur:
    • (a) the other party is in breach of any provision of this agreement and fails to remedy such breach (if capable of breach) within 30 days of having received written notice of such breach;
    • (b) an order is made or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order of the other party;
    • (c) an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the other party, or notice of intention to appoint an administrator is given by the other party or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986);
    • (d) a receiver is appointed of any of the other party’s assets or undertaking, or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other party, or if any other person takes possession of or sells the other party’s assets;
    • (e) the other party makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way, or becomes bankrupt; the other party ceases, or threatens to cease, to trade; or
    • (f) the other party takes or suffers any similar or analogous action to any of the foregoing in any jurisdiction in consequence of debt.
  • 7.2Inbay may (but is not obliged to) terminate this agreement forthwith by notice to the Client:
    • (a) if there is a change of control of the Client (where ‘control’ means the ability to direct the affairs of another, whether by virtue of the ownership of shares, contract or otherwise); or
    • (b) if the provisions of clause 1.4 apply.
  • 7.3 Within 30 days of notice to terminate being given by either party, at the request of the Client, the parties shall co-operate and prepare a written exit plan. The exit plan should set out each party’s obligations in order to ensure the smooth and efficient transfer of the Services to the Client or its successor supplier. The Client acknowledges that Inbay shall be entitled to charge for its Services in implementing the agreed exit plan where the time incurred by Inbay is more than 8 hours.
  • 7.4 Upon termination or expiry of the agreement for any reason:
    • (a) all sums due to Inbay in respect of Services provided up to the termination date shall become payable by the Client;
    • (b) Inbay shall, in the event of early termination, and at the sole discretion of Inbay, continue to provide its Services under this agreement and the relevant Order until a replacement supplier has been found by the Client or until a date six months after termination (whichever occurs first) in accordance with the provisions of clause 7.3; and
    • (c) termination of the agreement, however arising, shall not affect or prejudice the accrued rights of the parties as at termination or the continuation of any provision expressly stated to survive, or implicitly surviving, termination.
  • 7.5Upon expiry or termination of this agreement for whatever reason, Inbay shall, subject to the payment by the Client of all sums owing to Inbay under this agreement and any other agreement between the parties, promptly deliver to the Client all property of the Client or any Client Customer which is in Inbay’s possession or under its control.

8. FORCE MAJEURE

  • 8.1Inbay, provided that it has complied with the provisions of clause 8.2, shall not be in breach of this agreement arising from or attributable to acts, events, omissions or accidents beyond its reasonable control (Force Majeure Event), including but not limited to any industrial dispute affecting any third party, governmental regulations, fire, flood, disaster, power outage or electrical failure, theft of computers or related equipment, viruses, spyware and other hostile computer acts, telecommunications failures, non-availability of third party data centres and/or services, acts of terrorism, civil riot or war, or default of suppliers or subcontractors.
  • 8.2 Inbay shall not be in breach of this agreement provided that:
    • (a) it promptly notifies the Client in writing of the nature and extent of the Force Majeure Event;
    • (b) it has used all reasonable endeavours to mitigate the effect of the Force Majeure Event, to carry out its obligations under this agreement in any way that is reasonably practicable and to resume the performance of its obligations as soon as reasonably possible.
  • 8.3If the Force Majeure Event prevails for a continuous period of more than three months, the Client may terminate this agreement by giving 30 days’ written notice to Inbay. On the expiry of this notice period, this agreement will terminate.

9. LIMITATION OF LIABILITY

  • 9.1Each of the parties warrants to the other that it has full power and authority to enter into and perform this agreement.
  • 9.2 Inbay shall use its best endeavours to perform the Services with reasonable skill and care. No representation or warranty is given by Inbay, however, that all faults will be fixed or will be fixed within a specified period of time.
  • 9.3 Inbay makes no warranty or representation that the Services will be made available to the Client uninterrupted or error free.
  • 9.4Inbay may suspend some or all of the Services in order to carry out scheduled or emergency maintenance or repairs.
  • 9.5The Client acknowledges and agrees that certain of the Services may be provided to Inbay with the assistance of third party software and that accordingly Inbay’s commitment to the Client in respect of these Services is subject always to the third party software’s performance of its services to Inbay over which Inbay has no control and which may amount to a Force Majeure Event, such as the provision of fixes and updates to software, network availability, failure or planned maintenance and that Inbay’s liability in respect of any default, planned maintenance or failure of such Services shall be limited to managing resolution of the same in accordance with clause 8.2(b) as soon as is reasonably possible.
  • 9.6All other conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into this agreement or any collateral contract, whether by statute, common law or otherwise, are hereby excluded, including, without limitation, the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose and the use of reasonable skill and care.
  • 9.7Inbay shall have no liability for any losses or damages which may be suffered by the Client (or any person claiming under or through the Client, including the Client Customers), whether the same are suffered directly or indirectly or are immediate or consequential, and whether the same arise in contract, tort (including negligence) or otherwise howsoever, which fall within any of the following categories:
    • (a) special damage, even though Inbay was aware of the circumstances in which such special damage could arise;
    • (b) loss of profits;
    • (c) loss of anticipated savings;
    • (d) loss of business opportunity;
    • (e) loss of data;
    • (f) loss of or damage to goodwill;
    • (g) as a result of any Force Majeure Event (as defined in clause 8.1);
    • (h) in relation to any goods or services supplied by third parties;
    • (i) any defect or default arising from or caused by changes not approved by Inbay made to the Client’s or the Client Customers’ IT infrastructure or resulting from abnormal use;
    • (j) any unauthorised access to the Client’s or the Client Customers’ IT infrastructure, unless the parties have agreed in writing that Inbay is responsible for the security of such networks and/or systems;
    • (k) any failure of the Services which results from interference (including maintenance, development or adaptation) by the Client or the Client Customer or any third party which has not been expressly authorised by Inbay as being in accordance with the standard use of the Services or not in accordance with Inbay’s specific instructions;
    • (l) any failure due to the Client or the Client Customer failing to provide information as reasonably requested by Inbay (and any such failure which results in Inbay spending additional time and expenses to fulfil the Services shall be recoverable from the Client at Inbay’s then standard time and materials rates);
    • (m) any failure by the Client or the Client Customer or its staff to properly close down any part of the Client’s or the Client Customer’s IT infrastructure (as relevant) at the end of a working day;
    • (n) where any hardware of the Client or Client Customer is non-functioning and/or beyond economic repair;
    • (o) the functionality required by the Client/Client Customer does not exist within the scope of the equipment and/or software the Client or the Client Customer has; or
    • (p) a forced server reboot occurs that is out of Inbay’s reasonable control, for example, if an unscheduled patch is applied by a third-party.
  • 9.8Inbay shall not be liable for any loss suffered by the Client or any third party which is caused or contributed to by the act or omission of a third party which is beyond the reasonable control of Inbay.
  • 9.9Inbay agrees to take all reasonable measures to protect the Client’s and the Client Customers’ computer systems from the transmission of computer viruses and malware, including maintenance of the Client Customers’ anti-virus and anti-malware software where provided to Inbay and if agreed as part of the scope of Services. The Client acknowledges, however, that whilst Inbay shall use all reasonable endeavours to prevent the transmission of viruses and malware in accordance with best industry practice, viruses and malware may be outside Inbay’s reasonable control and thus amount to a Force Majeure Event.
  • 9.10The total liability of Inbay, whether in contract, tort (including negligence) or otherwise and whether in connection with this agreement (including under any indemnity given) or any collateral contract, shall in no circumstances exceed £5,000,000.
  • 9.11The exclusions in this clause 9 shall apply to the fullest extent permissible at law, but Inbay does not exclude or limit liability for:
    • (a) death or personal injury caused by the negligence of Inbay, its officers, employees, contractors or agents;
    • (b) fraud or fraudulent misrepresentation; or
    • (c) any other liability which cannot be excluded by law.

10. INSURANCE

  • 10.1Throughout the term of this agreement Inbay shall maintain such insurance as it deems appropriate, having regard to its obligations and liabilities under this agreement, including (but not limited to):
    • (a) public liability insurance for a minimum amount of cover of £5,000,000 for any one claim or for any one period of insurance and services supplied;
    • (b) professional indemnity insurance for a minimum amount of £5,000,000 for any one occurrence or series of occurrences arising out of any one event;

    and shall provide evidence of such insurance cover promptly upon the Client’s request.

  • 10.2If the Client wishes Inbay to increase its level of insurance beyond the levels stated in this clause 10, Inbay may be prepared to do so if the Client makes such contribution as shall be agreed by the parties in writing towards the additional costs of the increased cover.
  • 10.3Throughout the term of this agreement the Client shall maintain such insurances to such levels as are reasonable to cover the Client’s obligations and liabilities under this agreement and the Client shall provide evidence of such insurance cover promptly upon Inbay’s request.

11. CONFIDENTIALITY AND CLIENT’S PROPERTY

  • 11.1Confidential Information means all information, whether technical or commercial, specifications, drawings and designs, disclosed in writing, on disc, orally or by inspection of documents or pursuant to discussions between the parties or between any Client Customer and Inbay, where the information is identified as confidential at the time of disclosure; or ought reasonably to be considered confidential given the nature of the information or the circumstances of disclosure.
  • 11.2Each party shall protect the Confidential Information of the other party and of any Client Customer against unauthorised disclosure by using the same degree of care as it takes to preserve and safeguard its own confidential information of a similar nature, being at least a reasonable degree of care.
  • 11.3The Client may not, as receiving party, disclose the Confidential Information to anyone other than its employees and/or the Client Customers on a need-to-know basis only. It shall not be entitled to disclose the Confidential Information to its group companies, affiliates and professional or business advisors unless otherwise agreed in writing by Inbay.
  • 11.4Confidential Information may be disclosed by Inbay, as the receiving party, to its employees, affiliates and professional advisers, provided that the recipient is bound in writing to maintain the confidentiality of the Confidential Information received.
  • 11.5The obligations set out in this clause 11 shall not apply to Confidential Information which the receiving party can demonstrate:
    • (a) is or has become publicly known other than through breach of this clause 11;
    • (b) was in possession of the receiving party prior to disclosure by the other party;
    • (c) was received by the receiving party from an independent third party who has full right of disclosure;
    • (d) was independently developed by the receiving party; or
    • (e) was required to be disclosed by a governmental authority, stock exchange or regulatory body, provided that the party subject to such requirement to disclose gives the other party prompt written notice of the requirement.
  • 11.6The obligations of confidentiality in this clause 11 shall not be affected by the expiry or termination of this agreement.
  • 11.7All the Client’s materials, equipment and tools, drawings, specifications and data supplied by the Client or its Client Customer to Inbay during the Services (including, without limitation, the data described in clause 11.8 below) shall at all times remain the exclusive property of the Client or the Client Customer (as applicable), and without prejudice to clause 11.8, shall be returned to the Client/Client Customer by Inbay upon termination of the agreement or as requested subject to the Client’s payment of any outstanding fees.
  • 11.8Inbay acknowledges that during the term of this agreement it shall be collecting and processing data relating to the Client’s Customers (or potential Customers). Inbay agrees:
    • (a) to process such data only for the purpose of performing the Services;
    • (b) to implement appropriate security measures to protect such data from misuse, loss, deletion or damage;
    • (c) to follow such additional reasonable instructions in relation to its processing of such data as may be given to it by the Client from time to time.
  • 11.9Inbay shall not, and shall procure that none of its group companies shall, without the prior written consent of the Client (such consent not to be unreasonably withheld or delayed) at any time during the period from the Commencement Date to the expiry of one year after the date of termination of this agreement, solicit or endeavour to entice away any of the Client Customers whose details it obtained in the course of performing the Services for the provision of similar or the same services provided by the Client to those Client Customers.

12. DISPUTE RESOLUTION

  • 12.1If any dispute arises in connection with this agreement, directors or other senior representatives of the parties with authority to settle the dispute will, within 14 days of a written request from one party to the other, meet in a good faith effort to resolve the dispute.
  • 12.2If the dispute is not resolved at that meeting, the parties will attempt to settle it by mediation in accordance with the CEDR Model Mediation Procedure. Unless otherwise agreed between the parties, the mediator will be nominated by CEDR.
  • 12.3To initiate the mediation a party must give notice in writing (ADR notice) to the other party(ies) to the dispute requesting a mediation. A copy of the request should be sent to CEDR Solve. The mediation will start not later than 28 days after the date of the ADR notice.
  • 12.4The commencement of a mediation will not prevent the parties commencing or continuing court proceedings.

13. NON-SOLICITATION

  • 13.1The Client shall not without the prior written consent of Inbay (such consent not to be unreasonably withheld or delayed) at any time during the period from the Commencement Date to the expiry of six months after the date of termination of this agreement solicit or endeavour to entice away from or discourage from being employed or engaged by Inbay (or any of its group companies) any of its or their employees or sub-contractors engaged in providing the Services.
  • 13.2Inbay shall not without the prior written consent of the Client (such consent not to be unreasonably withheld or delayed) at any time during the period from the Commencement Date to the expiry of six months after the date of termination of this agreement solicit or endeavour to entice away from or discourage from being employed or engaged by the Client (or any of its group companies) any of its or their employees or sub-contractors who engage with Inbay in its provision of the Services.
  • 13.3Any consent given by Inbay or by the Client in accordance to clauses 13.1 and 13.2 shall be subject to the payment by the appropriate party to the consenting party of a sum equivalent to 25% of the then gross current annual remuneration of the relevant employee or sub-contractor or the rate proposed to be paid by the Client or Inbay (as appropriate) or any of its group companies to the said employee or sub-contractor, whichever is the higher.

14. NOTICES

  • 14.1Any notice given under this agreement shall be in writing and signed by or on behalf of the party giving it and shall be served by delivering it personally, or sending it by pre-paid recorded delivery or registered post to the relevant party at its registered office for the time being or by sending it by email to the email address notified by the relevant party to the other party. Any such notice shall be deemed to have been received:
    • (a) if delivered personally, at the time of delivery;
    • (b) in the case of pre-paid recorded delivery or registered post, 48 hours from the date of posting; and
    • (c) in the case of email, at the time of transmission to the correct address, provided that a notification of unsuccessful delivery is not received by the sender.
  • 14.2In proving such service it shall be sufficient to prove that the envelope containing such notice was addressed to the address of the relevant party and delivered either to that address or into the custody of the postal authorities as a pre-paid recorded delivery or registered post or that the notice was transmitted by email to the email address of the relevant party, provided that a notification of unsuccessful delivery is not received by the sender.

15. GENERAL

  • 15.1Assignment. The Client may not assign or transfer any of its rights or obligations under this agreement without the prior written consent of Inbay. Inbay may at any time assign, transfer, sub-contract or deal in any other manner with any or all of its rights or obligations under this agreement. Inbay may at any time use subcontractors to perform any of its obligations under this agreement, provided that it shall remain liable for any acts or omissions of its subcontractors.
  • 15.2No partnership or agency. Nothing in this agreement is intended to or shall operate to create a partnership between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf or otherwise to bind the other in any way.
  • 15.3Entire agreement. Except as provided in this clause, neither party shall have any remedy in respect of any untrue statement (whether written or oral) made to it on which it relied in entering into this agreement, and neither party shall have any liability other than pursuant to the express terms of this agreement.
  • 15.4Third party rights. This agreement is made for the benefit of the parties to it and is not intended to benefit, or be enforceable by, any other person.
  • 15.5Variation and waiver. A variation of this agreement (whether in relation to the nature and/or scope of the Services or otherwise) shall be in writing and signed by or on behalf of both parties to this agreement. A waiver of any right under this agreement is only effective if it is in writing, and it applies only to the party to whom the waiver is addressed and the circumstances for which it is given. No waiver shall be implied by taking or failing to take any other action.
  • 15.6Severance. If any provision (or part of a provision) of this 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. 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.
  • 15.7Governing law and jurisdiction. This agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by and construed in accordance with the law of England. The parties irrevocably agree to submit to the exclusive jurisdiction of the English courts.

Schedule

Data processing details

Processing of the Personal Data by Inbay under this Agreement shall be for the subject-matter, duration, nature and purposes and involve the types of personal data and categories of Data Subjects set out in this Schedule.

1: Subject-matter of processing:

In the case of NOC Services:

Inbay will process such personal data as is required for the provision of NOC services to Inbay’s Clients and Client Customers. This processing will be limited to the devices that Inbay’s Clients have contractually obligated Inbay to provide service for.

As a component of this support, Inbay will, from time to time, be required to liaise with vendors that Inbay Clients and Client Customers utilise the products and services of. To facilitate this, Inbay will process Vendor’s personal data for the purposes of engaging support and remediation.

In the case Of Service Desk Services:

Inbay will process such personal data as is required for the provision of Service Desk services to Inbay’s Clients and Inbay’s Client Customers. This processing will be limited to the devices that Inbay’s Clients have contractually obligated Inbay to provide service for.

As a component of this support, Inbay will, from time to time, be required to liaise with vendors that Inbay Clients and Clients Customers utilise the products and services of. To facilitate this, Inbay will process Vendor’s personal data for the purposes of engaging support and remediation.

2: Duration of the processing:

Inbay will process the data denoted within this agreement for the duration of the Client contract with Inbay. At the cessation of need for processing of any Client or Client Customer data, the client shall inform Inbay of the need to cease processing, at which time Inbay will cease processing and storage of the relevant data.

3: Nature and purpose of the processing:

In the case of NOC Services:

Inbay will process the Personal Data denoted in this agreement as necessary in order to fulfil the role of White Label NOC service provider to Inbay’s Clients and Client customers.
The nature of this processing comprises of:

  • The use of contact details, which are required in order to contact Inbay Clients, Client Customers and Client’s Vendors for the purposes of IT Infrastructure monitoring and remediation.
  • The use of personal data within ticketing systems and related tickets, RMM platforms and related alerts, for the purposes of Client and Client Customer IT Infrastructure fault monitoring, troubleshooting and remediation.

In the case of Service Desk Services:

Inbay will process Client and Client Customer personal data as denoted in this agreement as necessary in order to provide Service Desk Services to the Client and Client Customers

This processing shall comprise of the use of contact details, which are required in order to contact Inbay Clients, Client Customers for the purposes of Service Desk support provision, and other personal details, which are required to allow technical troubleshooting to be undertaken.

4: Type of Personal Data:

In the case of NOC Services:

The Client will provide Inbay with, or provide Inbay access to, certain items of personal data for the purposes of enabling Inbay to undertake NOC service provision to the Client and Client Customers.

Access to this personal data is only provided for the purposes outlined above, and the supplied personal data shall not be used for any other purpose.

The personal data to be provided to Inbay shall comprise of:

  • Client Details – Name, Location, Contact Name, Telephone Numbers and Email Addresses.
  • Client Escalation Details – Name, Location, Contact Telephone Numbers and Email Addresses
  • Primary and Secondary Client Escalation Contact Photograph
  • Client’s Customer Details – Name, Location and Email Addresses
  • Client Customer Contact details – Name, Designation, Location, Telephone and Email Address
  • Vendor contact details such as Vendor Contact Name, Telephone Number, Email address
  • Other personal details as may be present in Online Documentation Systems, Log Files, Tickets or RMM alerts, such as Workstation IP Addresses, User Names, Log On times, Technical Documentation.

In the case of Service Desk Services:

The Client will provide Inbay with, or provide Inbay access to, certain items of personal data for the purposes of enabling Inbay to undertake Service Desk service provision to the Client and Client Customers.

Access to this personal data is only provided for the purposes outlined above, and the supplied personal data shall not be used for any other purpose.

The personal data to be provided to Inbay shall comprise of:

  • Client Details – Name, Location, Contact Name, Telephone Numbers and Email Addresses.
  • Client escalation details – Name, Location, Contact Telephone Numbers and Email Addresses
  • Primary and Secondary Client Escalation Contact Photograph
  • Client Customer Details – Name, Location And Email Addresses
  • Client Customer Contact details – Name, Designation, Location, Telephone and Email Address
  • Vendor contact details such as Vendor Contact Name, Telephone Number, Email address
  • Other personal details as may be present in Online Documentation Systems, Log Files, Tickets or RMM Alerts, such as Workstation IP Addresses, User Names, Log On Times, Technical Documentation.
5: Categories of Data Subjects:

Inbay Clients
Inbay Client Customers
Inbay Clients and Inbay Client Customer’s Vendors