IT Terms and Conditions
Matrix Platinum Limited (t/a Matrix 247)
IT Products and Services – Standard Terms and Conditions.
We draw your attention to clause 7 Liability.
General Terms
These General Terms apply to the supply of all Services and Hardware by Matrix247 (as defined below). These General terms are also available at www.matrix247.com/terms
- Definitions & Interpretation
1.1 In the Contract unless the context otherwise requires:
1.1.1 words denoting the singular include the plural and vice versa;
1.1.2 any reference to “persons” includes individuals, bodies corporate, companies, partnerships, unincorporated associations, firms, trusts and all other legal entities; and
1.1.3 Any reference to an enactment includes reference to that enactment as amended or replaced from time to time and to any subordinate legislation or by-law made under that enactment;
1.1.4 The Client and Matrix247 shall together be the ‘parties’;
1.1.5 the following words or expressions shall have the following meanings:
“Additional Support” means any support services provided in addition to Support or Contracted Hours, which will be chargeable in accordance with Support Terms;
“Contract” any contract between the parties for the provision of Services and/or Hardware comprising: (i) the executed Order Form; (ii) these General Terms; (iii) the Appendices to these General Terms; (iv) Project Scope (as applicable); (v) any document incorporated by reference;
“Client Dependencies” any specific obligations and responsibilities on you as set out in the Contract including (without limitation) the Order Form or Project Scope;
“Client Materials” all materials, equipment drawings, specifications and data supplied by you to us;
“Contracted Hours” the number of chargeable hours per month that we agree to provide on-premise Support to you as specified in the Order Form (if applicable);
“Control” shall be as defined in section 1124 of the Corporation Tax Act 2010, and the expression ‘change of Control’ shall be construed accordingly;
“CRM” is Matrix 247’s customer relationship manager platform and software;
“DPA” is the Matrix247 Data Processing Addendum which shall apply to any processing of personal data by Matrix247 on behalf of the Client. This is attached at Appendix E or otherwise made available via link in the Order Form;
“Data Protection Legislation” all applicable data protection laws in the UK including the UK GDPR and Data Protection Act 2018, the Privacy in Electronic Communications Regulations and any other applicable national implementing laws, regulations and secondary legislation in England and Wales relating to the processing of Personal Data as amended, replaced or updated from time to time and the terms “Controller”, “Processor”, “Personal Data” and “Processing” shall have the meanings given in the Data Protection Act 2018.
“Demobilisation Costs” (i) any finance or break Fees which are incurred by us in respect of third parties directly as a result of your termination of the Contract other than as permitted in these General Terms, and (ii) any reasonable costs which we incur directly as a result of your termination of the Contract other than as permitted in these General Terms; and which are payable by us to third parties in respect of the termination of any agreements entered into with such third parties for the sole purpose of providing the Services and/or Hardware to you;
“Fees” means together the Professional Fees, Product Fees, Hardware Fees and/or On-Premise Fees as applicable;
“Extension Period” has the meaning given in Support Terms and Product Terms;
“General Terms” means these standard terms and conditions and any appendices unless specified otherwise, which are available at www.matrix247.com/terms.
“Group” in relation to a company, any subsidiary or holding company from time to time of that company, and any subsidiary from time to time of a holding company of that company;
“Group Company” in relation to company, and any member of its Group;
“Hardware” the hardware specified on the Order Form to be supplied under a Project (if any), the supply of which is also subject to the Hardware Terms or otherwise made available via link in the Order Form;
“Hardware Fees” means the fee payable for Hardware as specified in an Order Form;
“Hardware Terms” those terms which specifically apply to the provision of Hardware attached in Appendix C or otherwise made available at www.matrix247.com/terms ;
“Initial Period” the period specified on the Order Form for Support and Products, commencing from the Service Start Date;
“IT Infrastructure” the hardware, software, networks, communications, data, facilities and related equipment used by your business (but not the System);
“IPRs” all intellectual property rights including patents, copyright, moral rights, trade marks, business names and domain names, rights in get-up, goodwill, rights in designs, rights in computer software and database rights, in each case whether registered or unregistered and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
“MAUD Events” movement, additions, upgrades and disasters beyond those included in Support;
“On-Premise Fee” the Fees to be paid by you in respect of Contracted Hours Support (if any) as specified in the Order Form;
“Order Form” means the Order Form detailing the Services, Hardware, Fees and other applicable information and which incorporates these General Terms and shall form a Contract in accordance with clause 2, and for the purpose of these General Terms references to Order Form shall also be deemed to refer to a Proposal, unless specified otherwise;
“Products” the Matrix 247 cloud hosting and software as a service products purchased by the Customer from Matrix247, as specified on the Order Form (if any) and the supply of which is also subject to the Product Terms;
“Product Fees” the Fees to be paid by you in respect of the Products and any Software as applicable;
“Product & Software Terms” those terms which specifically apply to the provision of Products & Software as provided in Appendix B or otherwise made available at www.matrix247.com/terms;
“Professional Fees” the Fees to be paid by you in respect of Project and professional services as specified in the Order Form and as may be amended in accordance with clause 3 (Project Scope and Changes to Order Form);
“Project” the project work and resources to be provided by Matrix247, including any professional services and implementation of Products and Hardware as applicable, as further documented in the Order Form and Project Scope as applicable, and subject to the Project Terms;
“Project Scope” the detailed specification associated with a specific Project reference that defines the scope, content, and minimum and maximum limits of associated work covered by the Project and applicable Order Form, including any Products, Hardware and Contracted Hours, as agreed in accordance with clause 3 (Project Scope and Changes to Order Form);
“Project Start Date” the date a Project will commence as specified in the Order Form or in communications with Matrix247 Projects Department after confirmation of a Project Scope;
“Project Terms” those terms which specifically apply to the provision of Projects as provided in Appendix B or otherwise made available at www.matrix247.com/terms ;
“Proposal” a more extensive scope and order for Services and Hardware made available for your approval, and which will form the Order Form and basis of Contract in accordance with clause 2 (Basis of Contract).
“Service Start Date” the date of commencement of Product and Support Services, as confirmed in the first invoice issued to the Client (also referred to as Go Live);
“Services” the provision of: (i) Support; (ii) Project services; and/or (iii)Products, as specified in the Order Form;
“Service Level Agreement/SLA” the service level agreement setting out the applicable Service Levels and response times of remote Support, as made available by Matrix247;
“Service Credits” those credits which may be due to the Client in event of failed Service Levels, as provided for in Support Terms and the SLA;
“Service Levels” those service levels and performance indicators which apply to our delivery of Support, as applied under Support Terms and the SLA.
“Software” any third-party software and/or software as a service, to be supplied under an Order Form and which may relate to a specific Project and be incorporated in a Product, as specified in the Order Form;
“Supplier IPRs” all IPRs subsisting in the Software, Hardware, Products, documents, products and materials which is owned by Matrix247 or its third-party licensors, but excluding any Client Materials incorporated or stored in them;
“Support” the support and maintenance services to be performed by us in relation to Products, consisting of remote and on-premise support Contracted Hours (if any), as more detailed in the SLA;
“Support Terms” those terms which specifically apply to the provision of Support as provided in Appendix A or otherwise made available at www.matrix247.com/terms ;
“System” the system which will be Supported, comprising the number of assets set out on the Order Form;
“TMO Audit” an audit to be carried out on your IT Infrastructure as part of implementation and onboarding under a Project, or as periodically agreed;
“you”, “your” or “Client” the person named as the Client on the Order Form;
“we”, “us”, “our” or “Matrix247” being Matrix Platinum Limited (t/a Matrix 247) company number 03875632 with its registered address at Matrix House, Kingsway, Haslingden, Rossendale, Lancashire, BB4 4QJ;
“Users” means your employees or other personnel who are licensed to use the Products and Software as applicable, and for whom Support may be provided, all under the Order Form;
“Working Days” any day other than a Saturday, Sunday or bank or public holiday in England and Wales.
“Working Hour” any hour between 8.30am and 5:00pm (UK Time) on a Working Day)
“Written Notice” to be provided in writing to Matrix247 using email customerservice@matrix247.com; to the Client using the email detailed in the Order Form.
1.2 In the case of conflict or ambiguity between any provision contained in: (i) Appendices A-E; (ii) General Terms; (iii) a Project Scope; (iv) an Order Form; or (v) SLA or any other document referred to in the Contract, the order of precedence shall be (i) the highest and (v) the lowest.
2. Basis of Contract
2.1Any price in a Proposal or Order Form provided by us, shall be deemed a quote and not an offer which is open for acceptance. An Order Form/Proposal will only be binding once first signed by you and then countersigned by us, including electronically or via our CRM. At which time a Contract shall come into effect that shall continue in force until such time as the Contract is terminated in accordance with Clause 11 (Termination).
2.2 These General Terms apply to the Contract to the exclusion of any other terms that you seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.3 The Contract supersedes all prior agreements, arrangements and undertakings between the parties and constitutes the entire Contract between the parties relating to the subject matter of the Contract. The parties confirm that they have not entered into the Contract on the basis of any representation that is not expressly incorporated into the Contract.
2.4 Each Contract shall form a separate Contract for the provision of Services between the parties.
2.5 You agree that some Services and/or Hardware may be provided by other Group Companies, and your data (including Personal Data but subject to our DPA) will be shared with and processed by those Group Companies. Matrix247 shall, for the purpose of the Contract, be solely responsible to the Client under the DPA for any Personal Data processed by or in the possession of such Group Companies.
3. Term
3.1 The Services term will start on the Service Start Date. The contract will then continue for the following initial term depending on which service option is selected (the Initial Term): Platinum Package Option is a five year term with premium network pricing, Gold Package Option is a three year term with standard network pricing , Silver Package Option is a two year term with standard network pricing . At the end of the Initial Term, the contract will automatically renew for subsequent periods of twelve (12) months (each an Extension Period) on a rolling twelve (12) month basis unless you provide a minimum of ninety (90) days’ written notice to terminate before the end of the Initial Term or then current Extension Period. Such termination is not to take place earlier than the expiry of the Initial Term or Extension Period.
4. Project Scope and changes to Order Form
4.1 In the event the Contract includes a Project covering the implementation and onboarding of Hardware, Software and/or Products, then we shall carry out a TMO Audit as the first stage of any Project. The purpose of the TMO Audit is to review and ascertain the proposed Service solution as agreed in the Order Form as well as requirements of the System. You acknowledge and agree that the outcome of a TMO Audit may be a recommendation to change, reduce or increase the scope of the proposed Services and/or Hardware in the Order Form.
4.2 In the event we propose a change in the Services, Service Start Date and/or Fees following the TMO Audit, then you shall have the opportunity to agree to the change in scope or to continue with the Services and/or Hardware purchase as detailed in the Order Form.
4.3 If a change in scope is agreed then we shall issue a new Order Form for signature covering the varied or additional Services, Hardware and Fee changes, which will vary the Contract once signed.
4.4 After the TMO Audit, and any agreed change in scope, we shall issue the Project Scope detailing in full the Project and related professional services. Once agreed and signed this Project Scope will form part of the Contract.
5. Matrix 247 Obligations
5.1 In consideration of the full payment of all Fees payable under the Contract, we shall provide the Services, and/or Hardware to you in accordance with the terms of the Contract, as well as any specification provided in the Project Scope, Order Form or other Service documentation made available.
5.2 We warrant to you that the Services will be carried out with all reasonable care and skill by personnel whose qualifications or experience will be appropriate for the tasks to which they are allocated.
5.3 Where provided under the Contract, the specific Support Terms, Project Terms, Hardware terms, Product and Software Terms, SLA and DPA shall apply to the Contract.
5.4 We reserve the right to control, direct and establish technical procedures for the provision of the Services and the Client shall follow the reasonable instructions and procedures of Matrix 247. Where necessary, we may make reasonable operational changes to the Services without prior notice to you, providing there is no material impact on the performance or functionality of the same.
5.5 We shall use reasonable care and skill when providing Services but do not guarantee that the Services will be continually available. There may be occasions when Services are disrupted through an error or act of yours or another third party or circumstances outside the reasonable control of Matrix 247.
5.6 We shall maintain reasonable safeguards against the destruction, loss or unauthorised alteration of the Customer’s Material, and shall maintain reasonable security procedures to restrict the destruction, corruption or unauthorised access to the Customer’s Material, including back up material.
5.7 Except as expressly and specifically provided in the Contract, all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from the Contract.
5.8 We shall permit access to our systems and premises to any regulatory body or authority of the Client, on reasonable notice and solely for the purpose of auditing the suitability of the Services we provide in accordance with the commitments given in these General Terms.
6. Payment & Invoicing
6.1 Unless otherwise expressly stated on the Order Form, you must pay:
6.1.1 the On-Premise Fees in accordance with the Support Terms – www.matrix247.com/support-terms
6.1.2 The Professional Fees in accordance with the Project Terms – www.matrix247.com/project-terms
6.1.3 the Hardware Fees in accordance with the Hardware Terms – www.matrix247.com/hardware-terms
6.1.4 the Product Fees in accordance with the Product and Software Terms – www.matrix247.com/product-software-terms
6.2 Payments will be taken by Direct Debit unless otherwise specified in an Order Form and you must at all times maintain an active Direct Debit for the term of Support and/or Products. If you do not maintain an active Direct Debit, then we may charge you an additional administration fee of £7.50 per calendar month.
6.3 The Fees and any administration fees payable under the Contract are exclusive of VAT, which shall be payable by you.
6.4 Without prejudice to any other right or remedy that we may have, if you fail to pay us any sum due under the Contract on the due date:
6.4.1 We may charge interest on any overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this Clause 4.1 shall accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%; and
6.4.2 we may suspend all or part of the Services, and/or delivery of Hardware, until payment has been made in full.
6.5 All Fees will automatically increase on commencement of the first Extension Period each anniversary thereafter, and such increase will be in an amount equivalent to 15% plus the average percentage increase in the Retail Price Index over the preceding 12 months (as determined by the Office for National Statistics).
6.6. Subject to clause 6.5, we may also increase Product Fees and/or On-Premise Fees during the Initial Period or any Extension Period:
6.6.1 subject to clause 7 , at any time by giving you not less than 90 days’ prior written notice;
6.6.2 to reflect any increase made by a third-party vendor in the underlying cost of the licences for the Software, cloud hosting and/or network provider costs
6.6.3 not more than once per calendar year, to increase any Product or On-Premise Fees due under the Contract by an amount not exceeding the annual percentage increase specified in the Retail Price Index over the preceding 12 months, as determined by the Office for National Statistics (“RPI”). In such event we will provide you with 30 days’ written notice prior to any intended increase. If we do not exercise this right during any year of the Contract, we may roll the un-activated increase over to subsequent years which will apply in addition to any RPI increase applicable for the subsequent year(s).
6.7 Where notice of an increase in Product Fees or On-Premise Fee is given under Clause 6.1 , you may give 30 days’ notice of your intention to terminate the Products and/or Contracted Hours support at the end of the 90-day notice period referred to in Clause 6.6 above.
6.8 Matrix 247 reserves the right to recover all expenses and third-party costs which have been incurred in delivery of the Services.
6.9 We reserve the right to review our invoices and fees charged on a regular basis in order to identify any errors and ensure that any backdated charges we receive from third party suppliers related to your Products, are also invoiced to your accordingly. All such backdated charges and errors shall remain payable by you in accordance with these General Terms. If we identify an overpayment by you, we will issue a credit against your next monthly invoice.
7. Liability
7.1 Nothing in the Contract excludes either party’s liability for:
7.1.1 death or personal injury caused by their negligence;
7.1.2 fraud or fraudulent misrepresentation; or
7.1.3 any other liability which cannot be limited or excluded by applicable law.
7.2 We shall not be liable whether in tort (including negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any: (i) loss of profits; (ii) loss of business; (iii) loss of anticipated savings; (iv) depletion of goodwill or reputation; (v) loss or corruption of data, software or information; (vi) pure economic loss; or (vii) special, indirect or consequential loss, costs, damages, Fees or expenses however arising under the Contract.
7.3 Subject to clauses 1 and 7.2:
7.3.1 in respect of our total aggregate liability under the Data Processing Addendum it shall be limited to the lesser of (i) 50% of the total Fees paid and payable (whether invoiced or not) to Matrix247 under the affected Contract during the 6 months immediately preceding the date on which the claim arose, or (ii) £100,000 (one hundred thousand pounds);
7.3.2 our total liability in contract, tort (including negligence and breach of statutory duty) or otherwise in connection with a Contract, will be limited to an amount equal to the lesser of: (i) £25,000; and (ii) 50% of the total Fees paid and payable (whether invoiced or not) to Matrix247 under the Contract during the 6 months immediately preceding the date on which the claim arose.
7.4 You agree to: (i) fully release us from any claim or liability; and (ii) at all times indemnify us in full against all losses, damages, costs and expenses of any nature, arising from your (including any employees, agents or third parties acting on your behalf) use of the System, whether such use is as a result of access authorised by us or otherwise.
7.5 The parties acknowledge and agree that the limitations contained in this Clause 7 are reasonable in the light of all the circumstances.
7.6 Please Note. If you are leaving an existing supplier and switching over to Matrix for the Services/Products, then it is your responsibility to ensure that all existing services and contracts are cancelled. Whilst Matrix will provide reasonable assistance in supporting any switch over, we do not have oversight of your contracts and supplier arrangements, and therefore we exclude liability for any claims, costs or losses you may incur in respect of ceasing services with an existing supplier.
8. Your obligations
8.1 You shall at all times:
8.1.1 operate the System and follow all of our reasonable operational procedures and instructions.
8.1.2 comply with the Client Dependencies;
8.1.3 provide us with access to the Site(s) (as specified in the Order Form) and your IT Infrastructure as we may reasonably require to provide the Services;
8.1.4 be responsible for backup management, backup testing, media rotation and alerting us of problems such as failed backups (including if any data backup systems are supplied by us, unless we have specifically contracted to perform back-up management as part of Services and only then to the extent described in the Contract); and
8.1.5 ensure an appropriate independent data backup system is maintained.
8.2 If you fail to fulfil to comply with the obligations in this clause 7 and/or any Client Dependency in a proper and timely manner and such failure causes a delay in the performance of the Services or results in additional and/or wasted costs (including third party costs, travelling expenses and wasted time), we shall be relieved from performance of the Services for the duration of such delay, and you agree to reimburse us for any third party costs we incur due to the delay and related to your Services and/or Hardware.
8.3 You shall not access, store, distribute or transmit any material during the course of your use of the Products and Services that is offensive, facilitates illegal activity or violence, causes damage or injury, or is otherwise illegal.
8.4 You shall not:
8.4.1 introduce, store, transfer, distribute viruses, or permit or suffer the same, into network and information systems or in your use of the Services;
8.4.2 access or attempt to gain access to the Products or related systems or networks other than in the manner anticipated under the Contract; or
8.5 interfere with or disrupt performance of the Products, or our network and information systems or any data stored therein.
8.5 You shall not, except as may be allowed by any applicable law which is incapable of exclusion and to the extent expressly permitted under the Contract:
8.5.1 attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Services and related documentation in any form or media or by any means; or
8.5.2 attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Product or Software.
8.6 You shall ensure that only the Authorised Users may access the Products and Support Services, and that the Users at all times comply with the requirements contained in the Contract and keep any log in details secure and confidential, and comply with any Acceptable Use Policy or equivalent made available by Matrix247 from time to time. We reserve the right to suspend access to the Services for any User(s) in breach of these General Terms.
8.7 If you purchase a new Product off Matrix with the intention of replacing or upgrading an existing Product with Matrix, then we shall contact you following the implementation of the new Product to confirm whether you would like the designated replaced Product to cease. However, please note, that Matrix will not cancel the replaced Product without your written confirmation and you may continue to be charged for it until you provide such confirmation. This is to ensure there are no gaps in your Products and infrastructure, and it is your responsibility to ensure that confirmation is provided. You can refer to a recent invoice for information of all current Products, to assist with any review, or otherwise please contact us.
9. Intellectual Property and Licenses
9.1 As between the parties, all right, title and interest, including all IPRs in the Services, Hardware and/or Software and any components thereof are and shall remain the sole and exclusive property of Matrix 247 or our licensors, as applicable.
9.2 Unless otherwise agreed in writing between the parties, we shall be entitled to use your (or any of your affiliates’) name and logo in our lists of customers (including on our website and in any marketing materials).
9.3 You shall retain ownership of all rights title and interest in the Client Materials.
9.4 Subject to payment of the Fees, We grant you a non-exclusive, revocable, non-transferable, non-sublicensable royalty-free licence to access and use the Products and Software as specified in the Order Form (including by Users), as well as any related documentation made available by us to you, but only for your ordinary business purposes and during the term of the Contract;
9.5 You grant, and warrant that you have full licence and authority to do so, us a non-exclusive, royalty-free, non-transferable licence to copy and modify the Client Materials for the term of the Contract for the purpose of providing the Services to you in accordance with the Contract.
9.6 We have obtained and shall ensure we retain all necessary consents, licenses, permissions and/or certifications required for the provision of the Services and granting of licences to the Products and Software.
9.7 All Software and third-party software within the Products shall be licenced to you subject to such third party’s licence terms and conditions, which we make available to you www.matrix247/terms.
10. Confidential Information
10.1 Each party undertakes to treat as confidential and keep secret all information supplied by the other party pursuant to the Contract, including the terms of the Contract, which is designated as confidential by the other party or which is by its nature would reasonably be deemed to be confidential, provided that this Clause shall not extend to any information which was rightly in possession of the other party prior to the commencement of the negotiations leading to the Contract, or which is already public knowledge or becomes so at a future date (otherwise than as a result of a breach of this Clause) (collectively referred to as the “Information”).
10.2 Neither party shall without the prior written consent of the other divulge any part of the Information to any person except:
10.2.1 their own employees and then only to those employees who need to know the same;
10.2.2 their own auditors, an officer of Her Majesty’s Revenue and Customs and any other persons or bodies having a right, duty or obligation to know the business of either party, and then only in pursuance of such right, duty or obligation.
10.3 Both parties will ensure that persons and bodies mentioned in Clause 2 are made aware, before the disclosure of any part of the Information, that the same is confidential and that they owe duty of confidence to the other party. Each party shall indemnify the other against loss or damage which the other may sustain or incur as a result of the party in default failing to comply with this Clause 10 .
11. Termination
11.1 We may terminate the Agreement or part thereof on 60 days’ written notice to you at our discretion. You may terminate the Agreement on 90 days’ written notice, provided that such notice does not take effect until the end of the Initial Term or current Extension Period as set out in clause 3. The Agreement may not be terminated in part, nor only some of the Products cancelled, without our prior written agreement.
11.2 Either party may terminate the Contract immediately by written notice to the other:
11.2.1 If the other party commits a material breach of any term of the Contract, other than non-payment of an invoice which shall be dealt with in accordance with clause 13, and the breach is not capable of being remedied or where the breach is capable of remedy, the other party having failed to remedy, within 30 days of a request in writing to do so ;
11.2.2 the other party shall have a receiver or administrator appointed over any or all of its assets or shall pass a resolution for winding-up (otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction) or a court of competent jurisdiction shall make an order to that effect or if the other party shall become subject to an administration order or if it enters into any voluntary arrangement with its creditors or if it ceases or threatens to cease to carry on business; and/or
11.2.3 in the event all Services or Hardware delivery under that Contract have completed, expired or terminated as provided for in the Support Terms, Project Terms, Hardware Terms or Product & Software Terms as applicable.
11.3 In the event one of our suppliers or third-party Software vendors ceases to make the Software or Hardware available as agreed to be provided to you under a Contract, we reserve the right to propose a suitable replacement which materially performs to the same specification. If you choose to not accept the proposed replacement then either party may terminate the Contract, or affected part thereof, at no liability save for payment of Fees for Services or Hardware received.
12. Consequences of Termination
12.1 On termination or expiry of the Contract, you shall immediately pay to us all of our outstanding unpaid invoices and interest and, in respect of Products, Hardware, Services or Software supplied but for which no invoice has been submitted, we may submit an invoice, which shall be payable immediately on receipt.
12.2 Should you at any time attempt to terminate the Contract, or any portion or Service thereof, except in accordance with its terms or we terminate the Contract as a result of your breach, then (without prejudice to our other rights and remedies) no refunds of any Fees paid in advance shall be made by us and you must also pay us (i) the whole of any On-Premise Fees and /or Product Fees applicable for the remaining term of the Contract, which would have been due and payable save for such early termination; (ii) Professional Fees for any Project under that Contract which would have been payable save for such early termination; and (iii) any Demobilisation Costs . However, if such termination is as result of a Change in Control of you which affects the demand for our Services due to duplication of resources, we will work in good faith to reallocate and reduce Services where possible, subject to any remaining of the preceding costs still being payable by you.
12.3 Until we have received the termination Fees due under clause 2 above a notice of cancellation shall be of no effect and we may treat the Contract as subsisting, including any obligation to pay any Fees which would be due and payable under the Contract.
12.4 Subject to payment of Fees in accordance with the Contract, we will provide reasonable information and post termination support to assist your engagement an alternative or replacement supplier for similar products and services, but subject always to our right to protect confidential information and IPRs.
12.5 On termination or expiry of the Contract, you shall promptly return all Client Materials in your possession, which specifically includes all equipment provided by us in support of the Services. If you fail to return such Client Materials, we reserve the right to enter your premises to collect such Client Materials and, in respect of any equipment not returned in good condition, charge you a fee equivalent to the replacement cost of any such equipment (or comparable equipment) at the then current market rates. Such replacement costs shall be paid by you within 14 days of presentation of an invoice.
12.6 Termination or expiry of the Contract will not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry. Any provision of the Contract that is intended to continue in force on or after termination or expiry will remain in full force and effect.
13. Suspension and Delay
13.1 Without prejudice to any other right or remedy that we may have, if you fail to pay us any undisputed amount on the due date, we shall be entitled to suspend the provision of any Services under, or any part thereof, until payment has been received in full (whether or not the late payment relates to those Services).
13.2 Suspension Process. On the invoice due date, we will send you a payment reminder if any part of the invoice remains outstanding. If, after a further 7 days we still have not received payment, we will send you a written notice that we will be suspending the services (Notice of Suspension) in 7 days. We will send a second Notice of Suspension 72 hours before we suspend the services. If we have not received a payment by the end of the notice period, services will be suspended. If after another 7 days, still no payment has been received, we will send you a written notice that we will be terminating the services (Notice of Termination) in 7 days if we still don’t receive a payment, and at the end of that notice period all services will be terminated and clause 12 will apply. You acknowledge and agree that our obligation to provide notices in accordance with this process is on a reasonable endeavours basis only and we shall still be entitled to suspend of terminate for non payment by the required dates, even if the suspension process is not followed exactly.
13.3 You may not postpone a Project within 21 days of that Project Start Date without our prior written consent (being a “Short Postponement”). If we do consent to any such Short Postponement, we reserve the right to recover from you our reasonable costs incurred in managing the postponement, including the recovery of third-party supplier charges and Software licence fees.
13.4 If any Project is postponed beyond the Project Start Date for more than 60 days (whether a Short Postponement or not), then we may at that time invoice you for the all remaining Professional Fees for the delayed Project in recognition of the upfront costs and resources incurred by Matrix 247 in preparation for the Project, and may also charge you Product Fees for Products supplied under that Project which will be invoiced monthly in advance from that date in accordance with clause 5 (Payment and Invoicing). We will still be obligated to perform the Project after such payment has been received.
13.5 Please note that once an Order is signed, any delay in you accepting delivery or commencement of Hardware, Software and/or Support and Maintenance, will not affect your obligation to pay for such Products from that date of Order or date of Service Commencement, as applicable.
14. Data Protection
14.1 The provisions of our DPA (available here) shall apply to both parties in relation to the processing of Personal Data under the Contract (unless a separate data processing agreement is agreed and signed between us).
15. Security and Control
15.1 You shall during the continuance of the Contract:
15.1.1 be responsible for obtaining and maintaining your own compatible System including any public lines required by you to access the Services, and we shall have no responsibility for or liability with respect to the System;
15.1.2 maintain adequate security measures to safeguard your IT Infrastructure and the System from access or use by any unauthorised person;
15.1.3 maintain appropriate and up-to-date virus and malware protection to protect your IT Infrastructure and the System; and
15.1.4 retain the physical elements of the System under your effective control at all times.
15.2 We shall during the term of the Contract take appropriate physical, technical and organisational measures (aligned with good industry practice) to maintain the confidentiality, availability, security and integrity of the Products, Services and Customer Materials and dispense at our sole discretion credentials to third parties with permissions deemed applicable by us for the provision of appropriate Services.
16. Force Majeure
16.1 Notwithstanding anything else contained in the Contract neither party shall be liable for any delay in performing its obligations under the Contract if such delay is caused by circumstances beyond its reasonable control (including without limitation any delay caused by any act or omission of the other party ) provided however that any delay by a sub-contractor or supplier of the parties so delaying shall not relieve the party from liability for delay except where such delay is beyond the reasonable control of the sub-contractor or supplier concerned.
16.2 Either party may, if such delay continues for more than six weeks, terminate the Contract forthwith giving notice in writing to the other by reason of such termination.
17 Miscellaneous
17.1 No Agency. The Contract shall not constitute or imply any partnership, joint venture, agency, fiduciary relationship or any other relationship between the parties other as expressly provided in the Contract.
17.2 Non-Solicitation. During the Contract and for a period of 12 months after termination, howsoever occurring, you will not employ or seek to employ any member of our staff who has provided Services to you in the 12-month period immediately prior to termination of the Contract save where such employment is in response to an advertised vacancy.
17.3 Amendments. The Contract may not be released, discharged, supplemented, interpreted, amended, varied or modified in any manner except by: (i) executing a new Order Form or Project Scope, or (ii) otherwise in writing by an authorised officer or representative of each party.
17.4 Assignment and Subcontracting. The Contract may only be assigned by either party with the prior written approval of the other party, such consent not to be unreasonably withheld. However, you agree that we may assign or subcontract any or all of our rights and obligations under the Contract to a member of our Group, and you further acknowledge and agree that we may engage third-party sub-contractors (including Group Companies) in connection with the provision of the Services to you.
17.5 Notices. All notices under the Contract shall be in writing (including email) and shall be deemed to have been duly given when delivered. If delivered by courier or registered mail during normal business hours of the recipient and addressed to the most recent address notified to the other party; if by email on the next working day and using the email address as provided in the Order Form or such other address as may be notified from time to time.
17.6 Severance. If any provision of the Contract is judged by a Court to be unlawful, void or unenforceable the provision shall, to the extent required, be severed from the Contract and rendered ineffective as far as possible without modifying the provisions of the Contract and shall not in any way affect any other circumstances of or the validity or enforcement of the Contract.
17.7 Waiver. No delay, neglect or forbearance on the part of either party in enforcing against the other party in any term or condition of the Contract shall either be, or deemed to be, a waiver or will in any way prejudice any right of that party under the Contract. No right, power or remedy in the Contract conferred upon or reserved for either party is exclusive of any other right, power or remedy available to that party. Any waiver shall be recorded in writing.
17.8 Third Party Rights. The Contract is made for the benefit of the parties and their successors and permitted assignees and is not intended to benefit or be enforceable by anyone else.
17.9 Governing Law & Jurisdiction. The Contract and any dispute which arise in connection with it, shall be governed by and construed in accordance with the law of England and Wales the parties shall submit to the exclusive jurisdiction of the courts of England and Wales.
