1.1. The following definition in this paragraph ‎1 applies in these Managed Services Terms.

    Local System Components
    : means equipment supplied by the Client such as routers, switches, PCs, thin client devices, smart phones, wireless controllers and access points.

    1.2. Except as defined in these Managed Services Terms, capitalised terms shall have the meanings given to them in the Master Services Agreement found here (“Agreement”).

    1.3. In the event of conflict with the terms of these Managed Services Terms and the Agreement, the provisions in these Managed Services Terms shall take precedence insofar as it relates to the supply of Managed Services and in the event of a conflict with the terms of these Managed Services Terms and a Statement of Work, the provisions of the Statement of Work shall take precedence over these Managed Services Terms.

    2.1. The Supplier will provide the Managed Services in accordance with the Statement of Work and the terms of the Agreement with all due care, skill and ability during the Term unless earlier terminated for any reason.

    2.2. The Supplier shall provide the Managed Services in accordance with any Service Level Arrangements as stated in the Statement of Work.

    2.3. The Client shall remain responsible for the use of the Managed Services under its control including any use by third parties that Client has authorised to use the Managed Services.

    2.4. The Client must take reasonable measures to ensure it does not jeopardise services supplied to third parties on the same shared access infrastructure as notified to the Client by the Supplier in writing. This includes informing the Supplier promptly in the case of a denial-of-service attack or distributed denial-of-service attack. In the event of any such incident, the Supplier will work with the Client to alleviate the situation as quickly as possible. The Parties shall discuss and agree appropriate action (including suspending the Managed Services).

    2.5. The Client shall not provide the Managed Services to third parties unless otherwise indicated in the Statement of Work or as otherwise agreed by the Suppler in writing.

    2.6. The Client acknowledges that certain conditions outside of the Supplier’s control may adversely impact the ability of the Supplier to perform functions of the Managed Services. Examples of such conditions are listed below:
    (a) failure of Client Hardware, software or operating system;
    (b) partial or full failure of Third Party Services;
    (c) network connectivity issues between Local System Components and the Supplier’s platform;
    (d) network connectivity issues between Local System Components and its third party’s servers.

    2.7. The Supplier reserves the right to:
    (a) modify the Supplier’s System, its network, system configurations or routing configuration; or
    (b) modify or replace any Hardware in its network or in equipment used to deliver any Managed Service over its network,

    provided that this has no adverse effect on the Supplier’s obligations or performance under the Agreement and its provision of the Managed Services or the Service Level Arrangements. If such changes will have an adverse effect, the Supplier shall notify the Client and the Parties shall follow the Change Request procedure.

    2.8. If the Supplier breaches its obligations in paragraph ‎2.1 of these Managed Services Terms, the Supplier shall, at its expense, use commercially reasonable endeavours to correct any such non-conformance promptly, or provide the Client with an alternative means of accomplishing the desired performance.

    2.9. The Managed Services acquired by the Client under the Agreement are solely for the Client’s own internal use and not for resale or sub-licensing, unless otherwise agreed in writing. The Supplier shall be available for general questions via telephone, e-mail and/or chat through the designated channel (communicated separately and may be charged) in regard to the Products and Managed Services.

    2.10. The Supplier may suspend, revoke or limit use of the Managed Services, wholly or partly (i) in case of late payments, (ii) if the Supplier in its absolute discretion finds that a risk to the overall integrity of the Managed Services has occurred, or (iii) other reasonable grounds exist. If the cause of the suspension is reasonably capable of being remedied, the Supplier will provide the Client notice of what actions the Client must take to reinstate the Managed Services and/or Products. If the Client fails to take such actions within a reasonable time, the Supplier may terminate the applicable Managed Service.

    2.11 The Supplier is entitled to amend the terms of the Agreement and these Managed Services Terms in order to reflect any changes and updates received from its third party suppliers or otherwise if the Supplier has reasonable grounds for such amendment. The Supplier may also make reasonable change to prices, contents of the Managed Services, service hours or service levels.

    2.12 The Supplier may carry out network management routines to test the operations and functions of the relevant Services from time to time, notifying the Client in advance.

    2.13 The Supplier reserves the right to take any action that it perceives necessary to protect the Client’s systems even though this may impact on the Client’s business activities. The Supplier will make reasonable endeavours to inform the Client by telephone or email in advance of such action, but such action will not be dependent on such notification having been given or acknowledged.

    3.1. Notwithstanding the foregoing, the Supplier does not warrant that the Client’s use of the Managed Services will be:
    (a) free from faults, interruptions or errors;
    (b) available 100% of the time.

    3.2. In relation to the Managed Services specifically and notwithstanding the Supplier’s obligations under paragraph ‎2.1 of these Managed Services Terms, the Supplier shall:
    (a) staff the Supplier support desk with a team of skilled individuals (whether subcontracted or not);
    (b) maintain a team skilled in the platform and with knowledge of the systems developed to deliver the solution;
    (c) maintain a comprehensive IT service management solution, with integrated knowledge base and how-to guides to reduce the time to issue resolution;
    (d) undertake a regular account review if requested by the Client, to discuss the Client’s service needs and ensure that the Agreement is in alignment with its needs;
    (e) use commercially reasonable endeavours to follow the instructions of the Client and will remain courteous during any communications with Client personnel; and
    (f) provide the Client with reasonable co-operation in relation to the Agreement.

    3.3. The Supplier shall be under no obligation to provide the Managed Services to the Client in the following circumstances (unless specified under the Statement of Work):
    (a) unauthorised use of the Services by the Client or use otherwise than in accordance with the Agreement;
    (b) providing the Managed Services outside Normal Business Hours unless otherwise agreed between the Parties in writing;
    (c) providing any other services not covered herein;
    (d) training; and
    (e) providing the Managed Services to the Client where such support would have been unnecessary if the Client had implemented update(s) and upgrade(s) supplied or offered to the Client.

    3.4. The Supplier does not and cannot control the flow of data to or from its network and other portions of the internet.  Such flow depends in large part on the performance of internet services provided or controlled by third parties.  At times, actions or omissions of such third parties can impair or disrupt connections to the internet (or portions thereof).  Whilst the Supplier will use reasonable efforts to take all actions it deems appropriate to remedy and avoid such events, the Supplier cannot guarantee that such events will not occur. Accordingly, the Supplier disclaims any and all liability resulting from or related to such events.

    4.1. The Client shall (unless otherwise specified in the Statement of Work or as otherwise set out in the Agreement):

    (a) permit the Supplier to install the current version of software required to provide the Managed Services from time to time when upgrades or fixes occur and to provide a reasonable level of assistance in implementation and testing;

    (b) provide the Supplier at least seven (7) Business Days’ notice in advance of any intention or move to change when applicable Client-side Equipment or Client’s Operating Environment or data-feeds that will directly impact the Managed Services. If such notice has not been received on time, the Supplier will have to make additional effort to return the Client’s systems to an acceptable state for continued support, and will charge accordingly at its then standard charging rate.

    4.2. The Client shall not knowingly store, distribute or transmit any material through the Managed Services that:
    (a) is unlawful, harmful, threatening, defamatory, obscene, harassing or racially or ethnically offensive;
    (b) facilitates illegal activity;
    (c) depicts sexually explicit images; and/or
    (d) promotes unlawful violence, discrimination based on race, gender, age, disability, sexual orientation, religion and belief, gender reassignment, or any other illegal activities.

    5.1. The Supplier shall ensure that appropriate safety and security systems and procedures are maintained and enforced to prevent unauthorised access or damage to any and all Managed Services, the Supplier’s System and related networks or resources and the Client Data, in accordance with Good Industry Practice.
    5.2. Each Party shall promptly inform the other if it suspects or uncovers any breach of security, and shall use all commercially reasonable endeavours to promptly remedy such breach.

    6.1. The Client warrants:
    (a) that the Supplier’s use in the provision of the Managed Services or otherwise in connection with the Agreement of any third-party materials, including any Hardware supplied by the Client to the Supplier for use in the provision of the Managed Services or otherwise in connection with the Agreement, shall not cause the Supplier to infringe the rights, including any Intellectual Property Rights, of any third party;
    (b) it will comply with and use the Managed Services in accordance with the terms of the Agreement and all applicable laws, and shall not do any act that shall infringe the rights of any third party including the publishing or transmission of any materials contrary to relevant laws or in breach of the Customer Agreement or Licence Agreement.

    6.2. The Client is solely responsible for securing and backing up its data. The Supplier is not responsible or liable for the deletion of or failure to store any Client Data and other communications maintained or transmitted through the use of the Managed Services or Products.

    6.3. The Supplier does not warrant uninterrupted or error-free operation of the Managed Services and Products. Unless otherwise agreed in writing, the Managed Services and Products are designed, manufactured and intended for low-risk activities.

    6.4 The Client acknowledges and accepts that the Products are provided by a Third Party, and that any representations or warranties regarding the use of the Products is set out in the Customer Agreement or Licence Agreement (as the case may be). The Supplier has no responsibility for the suitability, availability, functionality or otherwise regarding the Managed Services and Products.

    6.5. The Supplier warrants that it shall perform the Managed Services in a professional manner. As the Client’s sole and exclusive remedy for breach of the foregoing warranty, the Supplier shall either correct the non-conforming Managed Service at no additional charge to the Client, or, in the event the Supplier is unable to correct after good-faith efforts, refund the Client a pro rata amount for the non-conforming Managed Service. To receive such remedy, the Client must promptly report deficiencies in writing to the Supplier, but no later than thirty (30) days after the first date the deficiency is identified, or should have been identified, by the Client.

    6.6. The warranties provided in these Managed Services Terms are the exclusive warranties from the Supplier in relation to the Managed Services.

    7.1. Subject to Clause 12.3 of the Agreement, the Service Level Arrangements state the Client’s full and exclusive right and remedy, and the Supplier’s only obligation and liability, in respect of the performance and availability of the Managed Services, or their non-performance and non-availability.
    7.2. Except as expressly and specifically provided in the Agreement the Client assumes sole responsibility for results obtained from the use of the Managed Services, and for conclusions drawn from such use. The Supplier shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Supplier by the Client in connection with the Managed Services, or any actions taken by the Supplier at the Client’s direction.