Service Level Agreement

THIS AGREEMENT is

BETWEEN:

(1) igeek Ltd, a company registered in England under number 4502568 whose registered office is at 6 Nithsdale Road, Weston-super-Mare, North Somerset, BS23 4JR (“the Service Provider”) and

(2) The Client.

WHEREAS:

(1) The Service Provider is engaged in the business of providing IT services and has reasonable skill, knowledge, qualifications and experience in that field.

(2) The Client wishes to engage the Service Provider to provide the IT Services subject to, and in accordance with, the terms and conditions of this Agreement.

(3) The Service Provider wishes to accept such engagement and shall provide the IT Services to the Client subject to, and in accordance with, the terms and conditions of this Agreement.

IT IS AGREED as follows:

1. Definitions and Interpretation
1.1 In this Agreement, unless the context otherwise requires, the following expressions have the following meanings:

Acceptable Delay Time"means the time by which the Response Time may be exceeded by the Service Provider under Clause 8 for reasonable reasons including, but not limited to, unavoidable delays in travel time;
Agreement Review"means a review of this Agreement which will be conducted in accordance with Clause 7 at the intervals specified in that Clause;
Business Day"means any day (other than Saturday or Sunday) on which ordinary banks are open for their full range of normal business in England;
Business Hours"means the business hours of the Service Provider which shall be 9am to 5pm;
Client’s Representative"means anyone who shall be responsible for liaising with the Service Provider’s Representative in accordance with Clause 7;
Client’s Management Representative"means anyone who shall be responsible for liaising with the Service Provider’s Management Representative in accordance with Clause 7;
Client’s Performance Representative"means anyone who shall be responsible for the monitoring of the provision of the IT Services in accordance with the Service Levels under Clause 8;
Commencement Date"means the date on which this Agreement comes into force pursuant to Clause 2;
Confidential Information"means, in relation to either Party, information which is disclosed to that Party by the other Party pursuant to or in connection with this Agreement or otherwise (whether orally or in writing or any other medium, and whether or not the information is expressly stated to be confidential or marked or may be interpreted as such);
Fees"means the fees payable by the Client to the Service Provider in accordance with Clause 5 and Schedule 2;
Issue Level"means the severity level of a Support Request as defined in Schedule 3;
Performance Report"means a report detailing the performance of the IT Services in relation to the Service Levels, prepared in accordance with the provisions of Clause 8 and Schedule 3;
Premises"means the Client’s premises at 11-19 Wine Street, Bristol BS1 2PH or such other premises as may be notified from time to time by the Client to the Service Provider;
Response Time"means the time within which the Service Provider must respond to a Support Request as set out in Clause 8;
Service Levels"means the agreed levels to which the Service Provider’s performance in providing the IT Services must adhere as set out in Schedule 3 and Clause 8 and shall include the Service Provider’s compliance with the Issue Levels and corresponding Response Times set out in Clause 8;
Service Provider’s Representative"means Joe Green who shall be responsible for liaising with the Client’s Representative in accordance with Clause 7, or such other person who the Service Provider may from time to time nominate;
Service Provider’s Management Representative"means James Chiswell Jones who shall be responsible for liaising with the Client’s Management Representative in accordance with Clause 7, or such other person who the Service provider may from time to time nominate;
Service Provider’s Performance Representative"means Joe Green who shall be responsible for the monitoring of the provision of the IT Services in accordance with the Service Levels under Clause 8, or such other person who the Service Provider may from time to time nominate;
Support Request"means a request for IT Services submitted by the Client to the Service Provider by means of telephone or email;
IT Services"means the IT Services to be provided by the Service Provider to the Client as set out in Clause 6 and Schedule 1; and
Term"means the term of this Agreement as set out in Clause 2.

1.2 Unless the context otherwise requires, each reference in this Agreement to:
1.2.1 “writing”, and any cognate expression, includes a reference to any communication effected by electronic or facsimile transmission or similar means;
1.2.2 a statute or a provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time;
1.2.3 “this Agreement” is a reference to this Agreement and each of the Schedules as amended or supplemented at the relevant time;
1.2.4 a Schedule is a schedule to this Agreement; and
1.2.5 a Clause or paragraph is a reference to a Clause of this Agreement (other than the Schedules) or a paragraph of the relevant Schedule.
1.2.6 a "Party" or the "Parties" refer to the parties to this Agreement.
1.3 The headings used in this Agreement are for convenience only and shall have no effect upon the interpretation of this Agreement.
1.4 Words imparting the singular number shall include the plural and vice versa.

2. Term of Agreement

2.1 This Agreement will come into force on the Commencement Date subject to the provisions of Clauses 7 and 10.

3. Service Provider’s Obligations

3.1 The Service Provider shall render the IT Services to the Client in accordance with the provisions of Clause 6 and Schedule 1 and in accordance with the required Service Levels set out in Clause 8 and Schedule 3.
3.2 The Service Provider shall perform its obligations under this Agreement in a reasonable and timely manner in accordance with the provisions of this Agreement.
3.3 The Service Provider shall provide the Client with such information and advice in connection with the IT Services and the provision thereof as the Client may, from time to time, reasonably require both before and during the provision of the IT Services.
3.4 The Service Provider shall use reasonable endeavours to keep the Client informed of any special requirements (including, but not limited to, legislative requirements) applicable to the rendering of the IT Services. To the extent necessary and appropriate, the Service Provider and the Client shall promptly take steps to comply with any such requirements. These steps shall not otherwise alter this Agreement in any way, subject to each Party’s right under sub-Clause 7.6 to request a meeting to review such changes.

 

4. Client’s Obligations

4.1 The Client shall provide the Service Provider with such information in connection with the IT Services and the provision thereof as the Service Provider may, from time to time, reasonably require both before and during the provision of the IT Services.
4.2 The Client shall perform its obligations under this Agreement in a reasonable and timely manner in accordance with the provisions of this Agreement.
4.3 The Client shall act in accordance with any and all reasonable instructions issued by the Service Provider in relation to the IT Services. The Service Provider shall not be liable for any failure to provide the IT Services or any part thereof which arises out of the Client’s failure to follow any such instructions.
4.4 [The Client shall inform the Service Provider forthwith of any new computer hardware and/or software that it intends to procure where such hardware and/or software is to be added to the Specified Equipment.]
4.5 The Client shall allow the Service Provider and its personnel access at all reasonable times to the Premises for the purpose of providing the IT Services.
4.6 The Client shall use reasonable endeavours to keep the Service Provider informed of any special requirements (including, but not limited to, legislative requirements) applicable to the rendering of the IT Services. To the extent necessary and appropriate, the Service Provider and the Client shall (as under sub-Clause 3.4) promptly take steps to comply with any such requirements. These steps shall not otherwise alter this Agreement in any way, subject to each Party’s right under sub-Clause 7.6 to request a meeting to review such changes.

5. Fees, Payment and Records

5.1 The Client shall pay the Fees to the Service Provider in accordance with the provisions of Schedule 2 as consideration for the IT Services provided by the Service Provider in accordance with the terms and conditions of this Agreement.
5.2 All payments required to be made pursuant to this Agreement by either Party shall be made within 30 days of the date of the relevant invoice in pounds sterling in cleared funds to such bank in the UK as the other Party may from time to time nominate, without any set-off, withholding or deduction except such amount (if any) of tax as that Party is required to deduct or withhold by law.
5.3 Where any payment pursuant to this Agreement is required to be made on a day which is not a Business Day, it may be made on the next following Business Day.

6. Provision of the IT Services

6.1 The Service Provider shall, throughout the Term of this Agreement, provide the IT Services to the Client in accordance with the terms and conditions of this Agreement, the provisions of Schedule 1 and the Service Levels as specified in Clause 8 and Schedule 3.
6.2 The Service Provider shall provide the IT Services only as specified in Schedule 1, during its Business Hours unless otherwise agreed in writing by the Parties.
6.3 The Service Provider shall be responsible for ensuring that it complies with all statutes, regulations, byelaws, standards, codes of conduct and any other rules relevant to the provision of the IT Services.
6.4 The Service Provider shall use all due and proper care to ensure that the manner in which it provides the IT Services does not have any adverse effect on the name, reputation, image or business of the Client.

7. Support Service and Agreement Monitoring

7.1 The Client and the Service Provider shall arrange meetings between the Client’s Representative and the Service Provider’s Representative at regular monthly intervals in order to discuss the provision of the IT Services in accordance with the Service Levels, where relevant, based upon Performance Reports generated in accordance with Clause 8 and Schedule 3.
7.2 Both Parties shall produce written reports from meetings held pursuant to sub-Clause 7.1 within one week following such meetings and shall use their reasonable endeavours to comply with any and all agreed actions to be taken with respect to the provision of the IT Services, the Service Levels and the performance by each Party of its respective obligations under this Agreement.
7.3 The Client and the Service Provider shall arrange meetings between the Client’s Management Representative and the Service Provider’s Management Representative at regular quarterly intervals in order to discuss matters arising out of meetings held pursuant to sub-Clause 7.1 and any other matters including, but not limited to, those relating to the provision of the IT Services and the Service Levels, where relevant.
7.4 In addition to the matters set out in sub-Clause 7.3, the Client’s Management Representative and the Service Provider’s Management Representative shall, in their quarterly meetings conduct an Agreement Review during which the Parties may propose, discuss and agree upon any desired or necessary alterations to this Agreement including, but not limited to, its terms and conditions, scope and duration. Any such agreed changes shall not be effective unless evidenced in writing and signed by the duly authorised representatives of the Parties.
7.5 No later than one month prior to the end of the current Term of this Agreement, the Client’s Management Representative and the Service Provider’s Management Representative shall conduct an Agreement Review during which the continuance and renewal of this Agreement shall be determined, where relevant. In the event that a renewal of the Agreement is agreed upon, the provisions of sub-Clause 2.2 shall apply.
7.6 Notwithstanding the provisions of sub-Clause 7.4, in the event that changes to this Agreement are required due to circumstances including, but not limited to, legislative or regulatory change, either Party shall have the right to call for an immediate Agreement Review to discuss the necessary changes and action to be taken. Any changes agreed upon during such Agreement Reviews shall not be effective unless evidenced in writing and signed by the duly authorised representatives of the Parties.

8. Service Levels and Response Times

8.1 The Service Provider shall use reasonable endeavours to provide the IT Services in accordance with the following Issue Levels and Response Times:
All issue Levels: 4 hours
The Response Time set out in sub-Clause 8.1 refers only to the time within which the Service Provider shall respond to a Support Request. The Service Provider gives no guarantee as to the time any given issue may take to resolve save that it hereby undertakes to use reasonable endeavours to resolve issues as quickly as is reasonably possible.
8.3 In the event that the Service Provider requires access to the Client’s Premises for the purposes of providing the IT Services, the Service Provider shall not be liable for any failure to comply with the relevant Response Time if it is unable to access the Premises through any fault of the Client.
8.4 For the purposes of monitoring and managing performance under this Agreement the Parties shall respectively appoint the Client’s Performance Representative and the Service Provider’s Performance Representative (each a “Performance Representative” for the purposes of this Clause 8). It shall be the responsibility of the Performance Representatives to ensure that the IT Services are provided in accordance with the Service Levels and the terms and conditions of this Agreement.
8.5 The provision of the IT Services in accordance with the Service Levels shall be monitored by the Service Provider’s Performance Representative in accordance with the provisions of Schedule 3.
8.6 All data collected by the Performance Representative pursuant to this Clause 8 and to Schedule 3 shall be presented in quarterly Performance Reports to be prepared by the Service Provider where relevant.
8.7 Performance Reports shall be submitted, within the time period specified in Schedule 3, to the Client’s Representative and the Service Provider’s Representative for consideration and agreement upon appropriate action to be taken (where relevant) during meetings to be held in accordance with sub-Clause 7.1.

9. Confidentiality

9.1 Each Party undertakes that, except as provided by sub-Clause 9.2 or as authorised in writing by the other Party, it shall, at all times during the continuance of this Agreement and for six years after its termination:
9.1.1 keep confidential all Confidential Information;
9.1.2 not disclose any Confidential Information to any other person;
9.1.3 not use any Confidential Information for any purpose other than as contemplated by and subject to the terms and conditions of this Agreement;
9.1.4 not make any copies of, record in any way or part with possession of any Confidential Information; and
9.1.5 ensure that none of its directors, officers, employees, agents or advisers does any act which, if done by that Party, would be a breach of the provisions of sub-clauses 9.1.1 to 9.1.4 above.
9.2 Either Party may:
9.2.1 disclose any Confidential Information to:
9.2.1.1 any sub-contractor or supplier of that Party;
9.2.1.2 any governmental or other authority or regulatory body; or
9.2.1.3 any employee or officer of that Party or of any of the aforementioned persons, parties or bodies;
to such extent only as is necessary for the purposes contemplated by this Agreement, or as required by law, and in each case subject to that Party first informing the person, party or body in question that the Confidential Information is confidential and (except where the disclosure is to any such body as is mentioned in sub-Clause 9.2.1.2 above or any employee or officer of any such body) obtaining and submitting to the other Party a written undertaking from the person in question, as nearly as practicable in the terms of this Clause 9, to keep the Confidential Information confidential and to use it only for the purposes for which the disclosure is made; and
9.2.2 use any Confidential Information for any purpose, or disclose it to any other person, to the extent only that it is at the date of this Agreement, or at any time after that date becomes, public knowledge through no fault of that Party, provided that in doing so that Party does not disclose any part of that Confidential Information which is not public knowledge.
9.3 The provisions of this Clause 9 shall continue in force in accordance with their terms, notwithstanding the termination of this Agreement for any reason.

10. Termination

10.1 Either Party may terminate this Agreement by giving to the other not less than one month written notice, to expire on or at any time after one month.
10.2 Either Party may forthwith terminate this Agreement by giving written notice to the other Party if:
10.2.1 any sum owing to that Party by the other Party under any of the provisions of this Agreement is not paid within 90 days of the due date for payment;
10.2.2 the other Party commits any other material breach of any of the provisions of this Agreement and, if the breach is capable of remedy, fails to remedy it within seven days after being given written notice giving full particulars of the breach and requiring it to be remedied;
10.2.3 an encumbrancer takes possession, or where the other Party is a company, a receiver is appointed, of any of the property or assets of that other Party;
10.2.4 the other Party makes any voluntary arrangement with its creditors or, being a company, becomes subject to an administration order (within the meaning of the Insolvency Act 1986);
10.2.5 the other Party, being an individual or firm, has a bankruptcy order made against it or, being a company, goes into liquidation (except for the purposes of bona fide amalgamation or re-construction and in such a manner that the company resulting therefrom effectively agrees to be bound by or assume the obligations imposed on the other Party under this Agreement);
10.2.6 anything analogous to any of the foregoing under the law of any jurisdiction occurs in relation to the other Party;
10.2.7 the other Party ceases, or threatens to cease, to carry on business; or
10.2.8 control of the other Party is acquired by any person or connected persons not having control of that other Party on the date of this Agreement. For the purposes of this Clause 11, “control” and “connected persons” shall have the meanings ascribed thereto by Sections 1124 and 1122 respectively of the Corporation Tax Act 2010.
10.3 The Client shall have the right to forthwith terminate this Agreement by giving written notice to the Service Provider in the event that the Service Provider fails to provide the IT Services in compliance with the Service Levels for as set out in sub-Clause 8.6.
10.4 The right to terminate this Agreement given by this Clause 10 shall not prejudice any other right or remedy of either Party in respect of the breach concerned (if any) or any other breach.

11. Post-Termination

Upon the termination of this Agreement for any reason:
11.1 any sum owing by either Party to the other Party under any of the provisions of this Agreement shall become immediately due and payable;
11.2 any rights or obligations to which any of the Parties to this Agreement may be entitled or be subject before its termination shall remain in full force and effect where they are expressly stated to survive such termination;
11.3 termination shall not affect or prejudice any right to damages or other remedy which the terminating Party may have in respect of the event giving rise to the termination or any other right to damages or other remedy which either Party may have in respect of any breach of this Agreement which existed at or before the date of termination;
11.4 subject as provided in this Clause 11, and except in respect of any accrued rights, neither Party shall be under any further obligation to the other;
11.5 each Party shall return to the other Party any materials in which the ownership has not been transferred to that other Party which have, for any reason, been provided for the purposes of this Agreement; and
11.6 each Party shall (except to the extent referred to in Clause 9) forthwith cease to use, either directly or indirectly, any Confidential Information, and shall forthwith return to the other Party any documents in its possession or control which contain or record any Confidential Information.

12. Liability and Indemnity

12.1 The Service Provider shall indemnify and hold harmless the Client, its subcontractors, agents and employees from and against any and all claims, costs and liabilities howsoever arising and of whatsoever nature and whether in contract or in tort, including injury to or death of any person or persons or loss of or damage to any property arising out of or in respect of the performance or failure to perform its obligations under this Agreement if and to the extent that such losses, costs, damages and expenses are caused or contributed to by the negligent acts or omissions of the Service Provider or any persons for which the Service Provider is otherwise legally liable.
12.2 The Client shall indemnify and hold harmless the Service Provider, its subcontractors, agents and employees from and against any and all claims, costs and liabilities howsoever arising and of whatsoever nature and whether in contract or in tort, including injury to or death of any person or persons or loss of or damage to any property arising out of or in respect of the performance by the Client of its obligations under this Agreement if and to the extent that such losses, costs, damages and expenses are caused or contributed to by the negligent acts or omissions of the Client or any persons for which the Client is otherwise legally liable.
12.3 Except as expressly provided in this Agreement, neither Party shall be liable or responsible to the other in contract, tort or otherwise (including any liability for negligence) for:
12.3.1 any loss of revenue, business, contracts, anticipated savings or profits, or any loss of use of facilities; or
12.3.2 any special indirect or consequential loss howsoever arising.
12.3.3 For the purposes of sub-Clause 12.3.1 “anticipated savings” means any expense which either Party expects to avoid incurring or to incur in a lesser amount than would otherwise have been the case by reason of the use of the IT Services provided by the Service Provider under this Agreement.

13. Force Majeure

Neither Party to this Agreement shall be liable for any failure or delay in performing their obligations where such failure or delay results from any cause that is beyond the reasonable control of that Party. Such causes include, but are not limited to: power failure, internet service provider failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the reasonable control of the Party in question.

14. Nature of the Agreement

14.1 This Agreement is personal to the Parties and neither Party may assign, mortgage, or charge (otherwise than by floating charge) any of its rights hereunder, or sub-contract or otherwise delegate any of its obligations hereunder, except with the written consent of the other Party, such consent not to be unreasonably withheld.
14.2 This Agreement contains the entire agreement between the Parties with respect to its subject matter and may not be modified except by an instrument in writing signed by the duly authorised representatives of the Parties.
14.3 Each Party acknowledges that, in entering into this Agreement, it does not rely on any representation, warranty or other provision except as expressly provided in this Agreement, and all conditions, warranties or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
14.4 No failure or delay by either Party in exercising any of its rights under this Agreement shall be deemed to be a waiver of that right, and no waiver by either Party of a breach of any provision of this Agreement shall be deemed to be a waiver of any subsequent breach of the same or any other provision.
14.5 At any time after the date hereof each of the Parties shall, at the request and cost of the other Party, execute or procure the execution of such documents and do or procure the doing of such acts and things as the Party so requiring may reasonably require for the purpose of giving to the Party so requiring the full benefit of all the provisions of this Agreement.

15. Severance

The Parties agree that, in the event that one or more of the provisions of this Agreement is found to be unlawful, invalid or otherwise unenforceable, that / those provisions shall be deemed severed from the remainder of this Agreement. The remainder of this Agreement shall be valid and enforceable.

16. Relationship of the Parties

16.1 Nothing in this Agreement shall constitute, or be deemed to constitute, a partnership between the Parties nor, except as expressly provided, shall it constitute, or be deemed to constitute an agency of any other Party for any purpose.
16.2 Subject to any express provisions to the contrary in this Agreement, the Service Provider shall have no right or authority to, and shall not do any act, enter into any contract, make any representation, give any warranty, incur any liability, assume any obligation, whether express or implied, of any kind on behalf of the Client or bind the Client in any way.

17. Notices

17.1 All notices under this Agreement shall be in writing and be deemed duly given if signed by, or on behalf of, a duly authorised officer of the Party giving the notice.
17.2 Notices shall be deemed to have been duly given:
17.2.1 when delivered, if delivered by courier or other messenger (including registered mail) during normal business hours of the recipient; or
17.2.2 when sent, if transmitted by facsimile or e-mail and a successful transmission report or return receipt is generated; or
17.2.3 on the fifth business day following mailing, if mailed by national ordinary mail, postage prepaid; or
17.2.4 on the tenth business day following mailing, if mailed by airmail, postage prepaid, in each case addressed to the most recent address, e-mail address, or facsimile number notified to the other Party.

18. Law and Jurisdiction

18.1 This Agreement (including any non-contractual matters and obligations arising therefrom or associated therewith) shall be governed by, and construed in accordance with, the laws of England and Wales.
18.2 Any dispute, controversy, proceedings or claim between the Parties relating to this Agreement (including any non-contractual matters and obligations arising therefrom or associated therewith) shall fall within the jurisdiction of the courts of England and Wales.

SCHEDULE 1

IT Services

IT Services may include, but may not be limited to: provision and procurement of domain names; creation of SSL certificates; hosting of websites; hosting of email; creation of and amendments to FileMaker Pro and FileMaker Go databases; creation of and amendments to websites; provision of SEO advice; business consultancy; provision of web content.

SCHEDULE 2

Fees and Payment

Fees are available from the IT Services Provider on request. Terms are 30 days unless otherwise specified.

SCHEDULE 3

Issue Levels

There is one Issue Level for the purposes of this agreement.

Performance Monitoring

Performance Monitoring will comprise, where relevant, of hours spent on a project, costs accrued by the Client to date, system status reports etc.

Performance Report

Performance Report will be typically by plain text email or by Word document where appropriate.

Submission of Performance Reports

Performance Reports will be delivered, where appropriate, on a timescale agreed by both Parties at the Agreement’s start.