Terms & Conditions for NVOY Technologies – Perimeter81
These Terms and Conditions, together with any documents referred to herein apply between NVOY Technologies Limited (“NVOY” “us” “our” or “we”) and you (the “Customer” or “you”) being the person who is named as the customer in the relevant Order Form or who otherwise places an order with us in respect of the provision of the Services, Equipment and/or Software by NVOY to the Customer.
1. Overview
NVOY agrees to provide the Services, Equipment and/or Software selected by the Customer in the relevant order form signed by the Customer and NVOY (the “Order Form“) or as otherwise agreed by NVOY and the Customer.
2. Term
The Term of the Agreement is as set out in the Order Form or as otherwise agreed by NVOY and the Customer. If no term is agreed, then either party may terminate the Agreement on giving 60 days’ written notice to the other.
3. Supply of the Services
3.1 NVOY shall supply the Services to the Customer with reasonable care and skill in accordance with the requirements set out in the Order Form or otherwise agreed in writing.
3.2 NVOY shall use reasonable endeavours to meet any delivery or performance dates specified in the Order Form or otherwise agreed in writing, but any such dates shall be estimates.
3.3 NVOY shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or to comply with the term and conditions of any Software licensor or Equipment manufacturer used by the Customer, or make such changes which do not materially affect the nature or quality of the Services, and NVOY shall notify the Customer in any such event.
3.4 All support is provided in accordance with the document “SLA Summary and Service Hours” as updated from time to time.
4. Supply of Equipment
4.1 No order for Equipment is valid until accepted by NVOY. Once accepted, the order may only be cancelled by NVOY’s agreement in writing.
4.2 While NVOY shall take reasonable skill and care in sourcing the Equipment, NVOY shall not be responsible or liable for the Equipment or for any information relating to the Equipment (which shall be the responsibility of the Equipment manufacturer), including any descriptions, specifications, photographs, weights, dimensions, capacities, prices, performance ratings and other information quoted all of which are for information only and non-binding and may be subject to correction by NVOY without liability.
4.3 Other than where a credit period has been agreed NVOY shall only deliver the Equipment to the Customer upon payment in full by the Customer. The risk in the Equipment shall pass to the Customer upon delivery.
4.4 The Customer agrees that any Equipment provided to it shall be subject to the manufacturer’s terms and conditions and warranties and that NVOY makes no warranty or representations with respect to the Equipment and shall have no liability in relation to same.
4.5 Supplier shall use its reasonable endeavours to deliver the Equipment to the premises stated in the Order Form or otherwise agreed in writing. The Supplier shall in no circumstances be liable to the Customer, including for any losses, damages or charges incurred by the Customer due to the late delivery of Equipment.
4.6 The Customer agrees that it will inspect the Equipment immediately upon delivery or collection and in all cases shall:
4.6.1 not sign to accept the Equipment if the types/quantities of Equipment are incorrect or the Equipment and/or their packaging are damaged in any way; and/or
4.6.2 inform NVOY in writing at the time of delivery of any damage, shortages, defects or non-delivery of the Equipment which was not apparent at the time of delivery/collection,
and, where the Customer fails to do so, they shall be deemed to have accepted the Equipment.
4.7 If the Customer fails to take delivery of or, where agreed, collect the Equipment, or fails to give NVOY adequate delivery instructions at the time stated for delivery, then without prejudice to any other rights or remedies available to it, NVOY may at its sole discretion:
4.7.1 store the Equipment until actual delivery and charge the Customer for the reasonable costs (including insurance) of storage; and/or
4.7.2 sell or otherwise release the Equipment at the best price readily available and charge the Customer any shortfall below the agreed Fees.
4.8 The Customer shall follow the manufacturer’s returns policy where applicable.
5. Customer obligations
5.1 The Customer shall:
5.1.1 reasonably co-operate with NVOY and provide complete and accurate information in the Order Form and/or any other correspondence with NVOY or as reasonably requested by NVOY;
5.1.2 grant NVOY global administrator rights to the Customer’s systems to enable NVOY to provide the Services;
5.1.3 provide NVOY, its employees, agents, consultants and subcontractors, with access to the premises of the Customer, office accommodation and other facilities as reasonably required by NVOY including, but not limited to, adequate workspace, use of telephone, storage, electrical supplies, environmental conditions, cabling, office furniture and equipment;
5.1.4 obtain and maintain all necessary licences, permissions and consents (including any consents required by the Customer’s landlord) which may be required before the date on which the Services are to start;
5.1.5 where required, to keep and maintain all materials, equipment, documents and other property of NVOY at the premises of the Customer in safe custody at its own risk and not dispose of or use same other than in accordance with the written instructions of NVOY;
5.1.6 reasonably comply with the requirements of NVOY’s technical and installation standards and any applicable rules and regulations;
5.1.7 maintain regular backup copies of its data to ensure recovery of its data;
5.1.8 provide Customer personnel with good knowledge of one or more components of the Services to provide help and advice to other Customer end users and to assist NVOY with remote diagnostics;
5.1.9 where reasonably possible, not add any hardware or equipment or software to its IT systems without providing advance notice to NVOY;
5.1.10 take all reasonable steps to ensure unauthorised access is not gained to its IT systems;
5.1.11 ensure that it maintains and complies with any licenses, consents or permissions in respect of all software distributed by or used within the Customer’s business including, where provided as part of the Services, and NVOY shall uninstall any non-licensed illegal software. There shall be no obligation to support any un-licensed or illegal software;
5.1.12 where servers or other equipment are used or stored, exercise due care in respect of these IT systems and keep the equipment in suitable premises and under suitable conditions as recommended by the manufacturer or NVOY;
5.1.13 ensure that its computer systems meet, and continue to meet, such minimum requirements as required by NVOY and/or the relevant equipment manufacturers from time to time (such minimum requirements available from NVOY on request);
5.1.14 carry out all necessary precautions to protect the health and safety of NVOY’s staff whilst on the Customer’s premises;
5.1.15 provide NVOY with access to the Customer’s IT systems and supply NVOY with any documentation and other information necessary or reasonably requested for NVOY to diagnose any fault in the Equipment;
5.1.16 materially comply at all times with the reasonable provision of the NVOY Technologies IT Acceptable Use Policy (as varied from time to time) available from NVOY on request.
5.1.17 not knowingly create or introduce, or allow to be introduced, any malicious software or codes or other destructive or contaminating programs;
5.1.18 comply with and follow such other reasonable instructions as are given by NVOY for the purposes of providing the Services; and
5.1.19 where reasonably possible, ensure that all remote devices used by the Customer are not adjusted or stopped from automatically updating their anti-virus and anti-spyware solutions independently of any centrally managed solution.
5.2 If the performance of NVOY of any of its obligations under the Agreement is prevented or delayed by any act of, or omission by, the Customer (Default):
5.2.1 NVOY shall, without limiting its other rights or remedies, have the right acting reasonably to suspend performance of the Services until the Customer remedies the Default, and to rely on the Default to relieve it from (or, where the Customer is able of curing it Default, suspend) its performance of any of its obligations to the extent the Default prevents or delays the performance of NVOY of any of its obligations;
5.2.2 NVOY shall not be liable for any losses sustained or incurred by the Customer arising directly or indirectly from the failure or delay of NVOY to perform any of its obligations during any period when, and to the extent that, performance of the Services has been suspended pursuant to this clause 5.2.
6. Warranty and disclaimers
6.1 To the maximum extent permitted by law and except as expressly set forth in this Agreement, NVOY expressly disclaims any warranty of any kind relating to the Services, whether express, implied, statutory or otherwise, including without limitation, any implied warranty of merchantability, fitness for a particular purpose. Other than as set out herein, the Services are provided on an “as is” basis and, to the maximum extent permitted by law, without any warranty of any kind.
6.2 To the maximum extent permitted by law, NVOY disclaims all liability for any error, inaccuracy or incompleteness in any services or information supplied to the Customer by a third party, including any manufacturer of Software and Equipment provided as part of the Services.
6.3 NVOY does not and cannot control the performance of internet services provided by it or any third parties and NVOY shall have no liability for same and provides no warranty that use of the Services will be uninterrupted or error free.
7. Fees, Payments and invoicing
7.1 The Customer shall pay for use of the Services in accordance with the Fees set out in the Order Form and are exclusive of all taxes, duties, levies, fees or other similar charges (including, without limitation, VAT) for which the Customer shall be liable (where applicable).
7.2 Unless specified otherwise in the Order Form or otherwise agreed in writing:
7.2.1 the Customer will be invoiced for Services monthly in advance on the 28th day of the month prior to the delivery of the Services and such fee shall be direct debited 10 calendar days later;
7.2.2 Payment for Equipment shall be invoiced and paid in advance, in full prior to the delivery of such Equipment to the Customer; and
7.2.3 Payment for Software shall be invoiced and paid in advance or monthly in arrears (at NVOY’s option).
7.3 NVOY shall have the right to benefit from any vendor discount or margin and reserves the right to amend the price payable for the Software in line with any fluctuation in vendor pricing and its agreed vendor discounts.
7.4 If a credit period has been agreed between NVOY and the Customer but not stated in the Order Form payment terms shall be 30 days from date of invoice.
7.5 For any payments made or invoices raised in any currency other than GBP NVOY may charge an additional administration fee (typically 5% of invoice value).
7.6 All invoices will be sent to the billing email (as stated in the Order Form).
7.7 In the instance that the cost for any products or services sourced externally of NVOY increases, NVOY may give the Customer fourteen (14) days written of notice of any changes to those Fees.
7.8 NVOY reserves the right to increase any Fees or prices payable in any currency other than GBP in line with fluctuations in the exchange rate between GBP and the relevant currency.
7.9 NVOY reserves the right to increase its Fees on each anniversary of the Effective Date by the then current Retail Price Index plus 5%.
7.10 Without prejudice to any other right or remedy that it may have, if Customer fails to pay NVOY any Fees (not subject to a bona fide dispute) due under this Agreement on the due date:
(i) NVOY shall be entitled to charge interest on the overdue Fees from the due date until payment of the overdue Fees (such interest to be calculated on a daily basis at a rate of 4% above the annual base rate of Barclays Bank plc from time to time); and/or
(ii) NVOY may immediately suspend all or part of the Services until payment has been made in full.
7.11 Where the Fees are not set out in an Order Form or otherwise agreed in writing, Fees shall be charged on a time and materials basis in accordance with the following:
7.11.1 the Fees shall be calculated in accordance with the standard daily fee rates of NVOY;
7.11.2 the standard daily fee rates of NVOY for each individual are calculated on the basis of an eight-hour day worked on business days;
7.11.3 NVOY shall be entitled to charge an overtime rate, at the NVOY annual published rates from time to time, of the standard daily fee rate on a pro-rata basis for each part day or for any time worked by individuals whom it engages on the Services during non-core hours of Service; and
7.11.4 NVOY shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom NVOY engages in connection with the Services.
7.12 In the case of the delivery of any Equipment, where the Customer postpones or cancels the provision of the delivery within forty-eight (48) hours of the agreed date of delivery/implementation, NVOY reserves the right to invoice the Customer for 50% of the Fees and if Customer postpones or cancels the provision of the Equipment within twenty-four (24) hours, of the agreed date of delivery/implementation, NVOY reserves the right to invoice the Customer for 100% of the Fees.
7.13 Notwithstanding clause 7.12, where NVOY has opened or built any Equipment on behalf of the Customer, the Customer shall be immediately liable for all Fees.
8. Confidentiality
8.1 Each party shall keep secure and secret any Confidential Information which such party has received from the other. “Confidential Information” shall mean any information, technical, commercial or of any other kind, whether written, oral or in electronic form, except such information which is publicly known or which has come to the public knowledge in any other way than through breach of this secrecy undertaking, or has been: (a) independently developed without access to such party’s Confidential Information; (b) rightfully received from a third party; or (c) required to be disclosed by law or by a governmental authority.
8.2 Neither NVOY nor the Customer shall, even after the expiration of this Agreement use or disclose to any third parties the Confidential Information except: (a) to those of its employees, officers, agents and sub-contractors required to know such Confidential Information for the purposes of their proper performance of this Agreement; (b) to its auditors or such other third party having a right, duty or obligation to know such Confidential Information; and/or (c) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority. In the case of (a) and (b), both parties shall ensure that any third parties have entered into confidentiality obligations on terms at least as favourable as set out in this Clause 8.
9. Data protection
9.1 NVOY and the Customer shall comply with applicable data privacy laws and regulations, which relate to the protection of individuals with regards to the processing of “Personal Data” (as defined in the Data Protection Act 2018 (including UK GDPR) and General Data Protection Regulation 2016/679 and this includes compliance with any applicable local data protection laws (“Data Protection Legislation”).
9.2 Where the factual arrangements between NVOY and the Customer dictate that NVOY is acting as a Processor (as defined in the Data Protection Legislation):
9.2.1 NVOY shall comply with its obligations under Article 28(3) of the UK GDPR (or its equivalent) with respect of its obligations.
9.2.2 The Customer shall ensure that it has all appropriate consents or other lawful basis to enable NVOY perform the Services.
10. Intellectual property
10.1 All intellectual property subsisting in, created during, or used in connection with the Services, including any modifications and amendments thereto, provided to the Customer by NVOY, shall be and remain the sole property of NVOY or its licensors (and shall be NVOY’s “Intellectual Property”). The Customer shall not, without our prior written consent or the relevant owner, use or adopt any name, trade name, trading style or commercial designation used by us or the relevant owner, or do or omit anything to infringe on any intellectual property right relating to any service supplied by us or the relevant owner. The Customer agrees to notify NVOY immediately if it becomes aware of any unauthorised use of NVOY’s Intellectual Property.
10.2 The Customer shall ensure that it is at all times appropriately licensed to use the Equipment and the Software, and shall be subject to the relevant vendor’s end user licence or other such agreement.
11. Liability
11.1 Both parties’ liability for any of the following is not excluded or limited by this Agreement for:
11.1.1 death or personal injury caused by its negligence or the negligence of its employees, agents or sub-contractors; or
11.1.2 fraud or fraudulent misrepresentations; or
11.1.3 any other liability which cannot be legally excluded or limited.
11.2 In no event shall NVOY be liable for special, incidental, consequential, indirect or punitive damages
11.3 In no event shall NVOY be liable for any loss of revenue or profit, loss of data, loss of use of any property or costs of substitute performance, equipment or service.
11.4 In the event of any fault with or damage to any Equipment which is not covered by the manufacturer’s warranty NVOY’s liability shall be limited to the provision of a replacement or refund of the cost of such Equipment. If such fault or damage is covered by the manufacturer’s warranty the Customer shall pursue a claim under such warranty and NVOY shall have no liability for such fault or damage.
11.5 Subject to Clauses 11.1, 11.2, 11.3, 11.4 and 11.7 NVOY’s total aggregate liability for any claim, loss, expense, or damage arising under this Agreement shall in no event exceed the total Fees paid by the Customer for the Services in respect of the six (6) month period immediately preceding the date on which the event giving rise to the claim took place.
11.6 The provisions of this Clause 11 shall apply to the fullest extent of the law, whether in contract, statute, tort (such as negligence), or otherwise.
11.7 Where NVOY is a reseller or introducer of Software or other services (“Reseller Services”) the Customer shall enter into an agreement with the provider of such Reseller Services and NVOY shall have no liability to the Customer under such agreement or in relation to such Reseller Services. The Customer agrees to comply with such agreement in full and to indemnify NVOY against any costs, claims, damages and/or expenses incurred by NVOY as a result of any failure to comply with such agreement.
12. Termination
12.1 Either party may terminate this Agreement immediately by written notice, if (a) the other party has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or enters into any form of insolvency, or enters into liquidation (except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation), or has a receiver and/or manager, administrator or administrative receiver appointed over its undertaking or assets or any part thereof; or (b) the other party ceases or threatens to cease to carry on business; or (c) the other party commits a material breach of this Agreement and (if such breach is remediable) fails to remedy that breach within thirty (30) calendar days of receiving written notice requiring it to do so.
12.2 Without prejudice to the remainder of this Agreement or any remedies available at law or in equity, NVOY may immediately suspend or terminate provision of the Services, the Software and/or the Equipment, without liability or refund, if the Customer fails to make a payment due under this Agreement or breaches any licence provisions, until such time as the Customer remediates its breach.
12.3 Save as expressly stated elsewhere in this Agreement, termination of this Agreement (or of any element of it) shall not affect any rights, obligations or liabilities of either party which have accrued before termination (including, without limitation, payment obligations) or which are expressly stated to continue to have effect beyond termination.
12.4 Upon termination of this Agreement: (a) NVOY shall invoice the Customer for all amounts due and this shall be payable within fourteen (14) calendar days from receipt of the invoice; (b) each party shall return to the other party any property of the other party that it has in its possession or control including any Confidential Information belonging to the other party; (c) the Customer’s access to the Services will immediately cease and all rights granted to the Customer in relation to the Services and the Information shall cease.
13. General
13.1 Entire agreement. This Agreement, namely the Order Form or other order placed by the Customer and accepted by NVOY, Schedules (if any) and any document expressly set out therein and these Terms and Conditions are the entire agreement between NVOY and the Customer regarding the Customer’s use of Services and supersedes all prior agreements, proposals, communications, or representations, whether oral or written, concerning its subject matter.
13.2 Contract variation. No variation of this Agreement shall be effective unless it is in writing and signed by both parties.
13.3 Force majeure. Except for any payments due hereunder, neither party shall be responsible or liable for any failure to perform its obligations due to causes beyond its reasonable control, including but not limited to acts of God, war, riots, terrorist acts, embargoes, pandemics, acts of civil or military authorities, fires, floods, earthquakes, accidents, strikes or other form of industrial actions, failure of any communications services or utility service for the duration of any such circumstances or cause.
13.4 Assignment. Neither party may assign, charge, transfer this Agreement in whole or in part without the prior written consent of the other party, such consent not to be unreasonably withheld or delayed.
13.5 Severability. If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this Clause 13.5 shall not affect the validity and enforceability of the rest of this Agreement.
13.6 Third-party rights. Nothing in this Agreement shall create or confer any rights or other benefits in favour of any person other than the parties to this Agreement save in respect of any end user licence agreement applicable to the Customer’s use of the Service.
13.7 Independent contractors. The parties are independent contractors. Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other.
13.8 Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”). The parties agree that TUPE is not intended to apply so as to transfer the employment or engagement of any persons employed or engaged (or formerly employed or engaged) by the Customer or a previous service provider to NVOY.
13.9 If the contract of employment or engagement of any person who is employed or engaged (or formerly employed or engaged) by the Customer or a previous service provider has effect or is alleged to have such effect, pursuant to TUPE, as if originally made between NVOY and any such person, then, NVOY may, at any time, dismiss any such person and the Customer shall indemnify and keep indemnified NVOY against all losses, damages, costs or expenses and other liabilities (including legal fees) incurred or suffered by, awarded against or agreed to be paid by NVOY arising out of or in connection with the employment or engagement of such person, any termination of the employment or engagement of such person, and any failure or alleged failure to inform and consult appropriate representatives under regulation 13 of TUPE.
13.10 Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right. Any waiver, to be effective, must be in writing and signed on behalf of the party who is waiving the breach or provision.
13.11 Notice. A notice given to a party under or in connection with this Agreement shall be in writing and sent to the party at its registered physical address and a copy shall also be sent by email to the party’s respective Notices Email (as outlined in the Order Form) or at any other address or email address as otherwise notified in writing by the other party. Notice shall be deemed to be served on the next working day.
13.12 Non-Solicitation. Customer shall not directly or indirectly solicit, offer employment or a contract to NVOY’s personnel during the Agreement and for a period of twelve (12) months after the end of the Agreement.
13.13 Misrepresentation. Each party agrees that it shall have no remedies in respect of any statement, representation, warranty or understanding (whether made innocently or negligently) that is not expressly set out in these Terms and Conditions. No party shall have any claim for innocent or negligent misrepresentation based on any statement other than as set out in these Terms.
13.14 Governing law and jurisdiction. These Terms and Conditions shall be governed by and construed in accordance with the laws of England and Wales and the English Courts shall have exclusive jurisdiction over any dispute or claim that arises out of or in connection with these Terms and Conditions.
