SEP2.security Terms and Conditions

1. INTERPRETATION
   1. The definitions in this clause apply in these terms and conditions:
      Conditions: these terms and conditions, including (unless expressly stated otherwise) the applicable Service-Specific Schedules.
      Contract: the contract between the Customer and the Supplier for the supply of Goods and/or Services created pursuant to clause 3 of these Conditions. Contract Documents, Initial Contract Term and Contract Commencement Date: are defined in clause 2 of these Conditions.
      Customer: the firm, company or other entity named as the customer in the Quotation.
      Foreign Exchange Rate: If used, this captures the exchange rate used within the Quotation to compute the prices of the Goods and/or Services listed
      Goods: the goods to be purchased by the Customer from the Supplier as described in the Quotation.
      Payment Schedule: If used, this captures the schedule of future invoices which will be issued in relation to the payment for Goods and/or Services.Quotation: a quote for the supply of Goods and/or Services issued by the Supplier to the Customer that is agreed between the parties pursuant to clause 2.1 of these Conditions.
      Services: the services to be purchased by the Customer from the Supplier as described in the Quotation.
      Service-Specific Schedules: the schedules attached to these Conditions which set out additional terms applying to some of the Supplier’s service/product lines.
      Supplier: Sep2 Limited, a company incorporated in England and Wales under number 09988870 whose registered office is at 51a St. Pauls Street, Leeds, England, LS1 2TE.
   2. Unless the context otherwise requires, words in the singular shall include the plural and vice versa. A reference to writing or written includes email. References to clauses are to the clauses of these Conditions and references to paragraphs are to paragraphs of the relevant Service-Specific Schedules.
   3. Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
2. CONTRACT FORMATION, COMMENCEMENT AND DURATION
   1. The issue by the Supplier of a draft Quotation constitutes an offer to contract upon these Conditions, which may only be accepted by the Customer either signing the Quotation where indicated (either by a “wet ink” signature or electronic signature via the Supplier’s contract management system) or, if it is not signed for any reason, by the Customer raising a purchase order document(s) pursuant to the Services or Goods described in the Quotation from the Supplier, or by the Customer accepting the provision to it of any (or any part of) the Services or Goods described in the Quotation from the Supplier.Acceptance of the Quotation by the Customer as described above creates a Contract between the Customer and Supplier upon the terms of the most recent Quotation issued to the Customer prior to such acceptance, these Conditions and the applicable Service-Specific Schedules (together, “Contract Documents”). The date of the Customer’s signature on the Quotation, or the date of a purchase order, or the date of commencement of the provision of either Goods or Services to the Customer if there is no such signature, shall be the “Contract Commencement Date”.The parties may at any time mutually agree upon and enter into new or additional Contracts at any time.
   2. The Contract shall commence on the Contract Commencement Date and shall continue for the period set out in the Quotation, unless terminated earlier in accordance with clause 9 (“Initial Contract Term”). If no such period is set out in the Quotation the Contract shall continue until completion of supply of the relevant Goods and/or Services.
   3. Where the terms of any of the Contract Documents conflict, the terms contained in the documents listed higher in the list below shall take precedence:
      • Quotation;
      • Service-Specific Schedules; and
      • these Conditions.
   4. The Contract Documents shall apply to govern the Contract, to the exclusion of any terms or conditions contained in, or referred to in, the Customer’s purchase order, confirmation of order, specification or other documentation, and any such terms provided by the Customer shall not form part of or govern the Contract.
   5. The Supplier shall use reasonable endeavours to perform its obligations under the Contract within the timeframes set out in the Quotation (if any). Time for performance of the Services or delivery of the Goods shall not be of the essence of the Contract.
   6. The following Service-Specific Schedules shall also apply to the Contract in the following circumstances:Where the Customer purchases Goods, the terms of the ‘Resale of Goods’ Service-Specific Schedule shall apply;Where the Customer purchases consultancy services, the terms of the ‘Consultancy Services’ Service-Specific Schedule shall apply;Where the Customer purchases support services, the terms of the ‘Support Services’ Service-Specific Schedule shall apply;Where the Customer purchases managed services, the terms of the ‘Managed Services’ Service-Specific Schedule shall apply.Other additional Service-Specific Schedules may apply in situations where a specific Good or Service is sold which carries with it more specific contractual terms.
3. CUSTOMER’S OBLIGATIONS
   1. The Customer shall:
      1. co-operate with the Supplier in all matters relating to the Services and appoint a representative who shall have the authority to contractually bind the Customer on matters relating to the Contract (“Designated Contact”);
      2. provide in a timely manner such access to the Customer’s premises and data, and such office accommodation and other facilities, as requested by the Supplier. The Supplier will comply with the Customer’s policies on access to the same that are provided to it in advance of such access. Where the provision of Goods or Services requires the Supplier’s personnel to attend the Customer’s premises, the Customer provide a safe working environment for this purpose;
      3. provide in a timely manner such information as the Supplier may request, and ensure that such information is accurate in all material respects;
      4. be responsible (at its own cost) for preparing the relevant premises for receipt of the Goods/Services and for the provision of all necessary access and facilities reasonably required by the Supplier. If the Supplier is prevented from delivering on the agreed delivery date because no such preparation has been carried out, the Supplier may levy additional charges to recover any further costs incurred by it in relation thereto;
      5. Obtain all necessary permissions and consents which may be required before the commencement of the Contract;
      6. Comply with such other requirements as may be set out in the Quotation or reasonably requested by the Supplier.
   2. If the Supplier’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer or the Customer’s agents, subcontractors or employees, the Customer shall in all circumstances be liable to pay to the Supplier on demand all reasonable costs, charges or losses sustained or incurred by it.
   3. The Customer warrants that it has the right, power and authority to enter into the Contract and to perform it in accordance with its terms
4. CHARGES AND PAYMENT
   1. Clause 4.2 shall apply if the Services are to be provided on a time-and-materials basis. Clause 4.3 shall apply if the Goods/Services are to be provided for a fixed price. The remainder of this clause 4 shall apply in either case
   2. Where the Services are provided on a time-and-materials basis
      1. the charges payable for the Services shall be calculated in accordance with the Supplier’s standard daily fee rates as amended from time to time;
      2. the Supplier’s standard daily fee rates are calculated on the basis of an seven-hour working day worked between the hours of 8.00 am and 6.00 pm on weekdays (excluding weekends and public holidays);
      3. the Supplier shall be entitled to charge at an overtime rate of 150% of the normal daily rate for part days and for time worked by the Supplier’s personnel outside the hours referred to in clause 4.2.2 on a pro-rata basis;
      4. the Supplier shall ensure that all Supplier personnel engaged in provision of the Services complete time sheets and shall record the total time spent on the Services, and the Supplier shall use such time sheets to calculate the charges; and
      5. the Supplier shall invoice the Customer monthly for its charges for time, expenses and materials (together with VAT where appropriate) for the month concerned, calculated as provided in this clause 4.
   3. Subject to any contrary provision in the Quotation, where the Goods and Services are provided for a fixed price, the price shall be the amount set out in the Quotation.
   4. The Quotation will confirm whether the price of Goods and/or Services is payable in advance (or annually in advance) or in arrears. If the price is payable in advance, the Supplier shall not be obliged to commence work in respect of the Goods/Services to which the price relates, until payment has been made.
   5. Any fixed price contained in the Quotation excludes:
      1. any applicable delivery/shipping costs; and
      2. VAT (value added tax), which in each case the Supplier shall add to its invoices, and the Customer will pay (at the appropriate rate in respect of VAT).
   6. Subject to any contrary provision in the Quotation, the Customer shall pay each invoice submitted to it by the Supplier in full, and in cleared funds, within 14 days of receipt. Time for payment shall be of the essence of the Contract.
   7. Without prejudice to any other right or remedy that the Supplier may have, if the Customer fails to pay the Supplier on the due date the Supplier may:
      1. charge costs and interest on such sums under the Late Payment of Commercial Debts (Interest) Act 1998 at the applicable rate from time to time in force. Interest shall accrue on a daily basis, and apply from the due date for payment until actual payment in full, whether before or after judgment; and
      2. suspend all Services, and any further supply of Goods, until payment has been made in full.
   8. All payments payable to the Supplier under the Contract shall become due immediately on termination of the Contract, notwithstanding any other provision.
   9. All amounts due under the Contract shall be paid by the Customer to the Supplier in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law). The Supplier may, without prejudice to any other rights it may have, set off any liability of the Customer to the Supplier against any liability of the Supplier to the Customer.
   10. For the avoidance of doubt, if the Supplier provides Goods or Services to the Customer at the Customer’s request which are not referred to in a Quotation accepted by the Customer pursuant to clause 2.1 (but otherwise in accordance with these Conditions), the Supplier shall be entitled to invoice, and be paid by the Customer for, such Goods or Services.
   11. If the Customer’s procedures require that an invoice be submitted against a purchase order, the Customer shall be responsible for issuing such purchase order prior to the date of the Supplier’s invoice.
   12. The Supplier does not guarantee that the price of Goods or Services previously provided by it under any Contract shall be maintained in any subsequent Contract. Prices of Goods may change between orders, as may the Supplier’s standard daily fee rates.
   13. Where the Contract is in respect of either support services or managed services or both (in each case as described further in the relevant Service-Specific Schedule)
       1. There shall be an automatic increase in the charges payable by the Customer no more than once in any 12 month period, of the higher of (i) 5%, or (ii) the percentage increase, over the preceding 12 months for which figures are available, in the UK RPI (For the purposes of this clause, “RPI” means the retail prices index used as a measure of inflation in the UK which is published and updated by the Office for National Statistics from time to time); and
       2. Prior to any renewal of the Contract pursuant to clause 2.7, the Supplier may propose an additional price increase (notwithstanding the automatic price increase under clause 4.13.1) to apply as from the end of the Initial Contract Term, and/or subsequently upon any anniversary thereof, on notice to the Customer not less than 60 days prior to the end of the Initial Contract Term, or (as applicable) any anniversary thereof. Subject always to the Customer’s right to terminate the Contract under clause 2.7, any such proposed price increase shall automatically apply (and the charges shall be adjusted accordingly) as from the end of the Initial Contract Term, or (as applicable) any anniversary thereof.
   14. Where, within the Quotation, it is identified that a Foreign Exchange Rate is used to calculate the prices, should a Payment Schedule be used to stipulate future payments, if the Foreign Exchange Rate at the date of a future payment is different by more than 0.05, the Foreign Exchange Rate of that date will be used and the payment value will therefore be updated to reflect the changed Foreign Exchange Rate.

5. 5. THIRD PARTY SOFTWARE
      1. Where the Supplier supplies third party software (whether provided via a licence key or access to a portal or otherwise), the Customer’s right to use such software is subject to the relevant software licensor’s end user licence agreement (“EULA”) in respect of such software, which the Customer shall comply with in full. The EULA may be made available on a ‘click-wrap’, ‘shrink-wrap’ or other similar basis, or otherwise available from the Supplier on request. The Customer acknowledges and agrees that it shall have no greater rights or remedies against the Supplier in respect of such software, as the Supplier has against the vendor of such software.
      2. Google Chronicle is part of the wider Google Cloud Platform, and therefore the terms and conditions of use of Google Cloud Platform are within the scope of these terms. Specifically, the following terms are within the EULA – https://cloud.google.com/product-terms#section-15
   6. INTELLECTUAL PROPERTY RIGHTS
      1. Nothing in the Contract shall operate to transfer any existing intellectual property rights from one party to the other, unless otherwise specifically identified in the Quotation. Any new intellectual property rights created by the Supplier in the course of the Contract shall vest in the Supplier upon creation, unless specifically agreed otherwise in the Quotation
   7. CONFIDENTIALITY
      1. Any party (the “Receiving Party”) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to it by the other party (the “Disclosing Party”), its employees, agents or sub-contractors and any other confidential information concerning the Disclosing Party’s business or its products which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidential material to such of its employees, agents or sub-contractors as need to know the same for the purpose of discharging the Receiving Party’s obligations under the Contract, and shall ensure that such employees, agents or sub-contractors are made aware of the confidential nature of such confidential material.
   8. LIABILITY
      1. Nothing in the Contract excludes the liability of the Supplier for anything which cannot be excluded under applicable law.
      2. All Services will be provided using reasonable care and skill. Subject to the foregoing, all warranties, conditions and other terms implied by statute or common law are, to the greatest extent permitted by law, excluded from the Contract. Without limitation to the foregoing, the Supplier does not warrant that use of any Goods or third party software shall meet the Customer’s expectations or work as intended with any of the Customer’s other hardware or software, and the Supplier has no liability to the Customer in respect thereof where the Customer’s requirements have not been sufficiently brought to the Supplier’s attention prior to the Contract or where the Customer has not followed the Supplier’s express advice.
      3. Subject to clauses 8.1 and 8.2:
         1. Neither party shall in any circumstances be liable, whether in tort (including for negligence or breach of statutory duty however arising), contract, misrepresentation (whether innocent or negligent) or otherwise for:
            • loss of profits;
            • loss of business;
            • depletion of goodwill or similar losses;
            • loss of anticipated savings;
            • loss of contract;
            • loss of use;
            • loss or corruption of data or information; or
            • any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
         2. the Supplier shall not in any circumstances have any liability to the Customer if it is prevented from, or delayed in, performing its obligations under the Contract as a result of any act or omission of the Customer, its employees, agents or sub-contractors, and any timescales for provision of the Services shall be amended accordingly.
         3. each party’s total liability in contract, tort (including negligence or breach of statutory duty however arising), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to either(i) in the first year of the Contract, a sum equal to the total price set out in the initial agreed Quotation, or(ii) in the second and any subsequent year of the Contract, a sum equal to the total charges actually paid by the Customer to the Supplier under the Contract in the 12 month period immediately preceding the date of the relevant liability arising.
      4. The Customer shall indemnify and keep indemnified in full (and on demand) the Supplier against all claims, costs and expenses which the Supplier may incur and which arise, directly or indirectly, from:
         1. the Customer’s breach of any of its obligations under the Contract;
         2. any breach of third party intellectual property rights arising from the Supplier’s compliance with the Customer’s instructions or from the Supplier’s reconfiguration of Goods or software in accordance with the Customer’s specification; and
         3. any failure by the Customer to enter into any end user licence agreement required in respect of any third party software that is identified in the Quotation as being part of this Contract of supply.
      5. The Supplier shall indemnify and keep indemnified in full (and on demand) the Customer against all claims, costs and expenses which the Customer may incur and which arise, directly or indirectly, for any claim by a third party that the Services infringe the intellectual property rights of any third party.
         1. Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate the Contract without liability to the other if:
            1. the other party fails to pay any amount due under the Contract on the due date for payment and remains in default not less than 7 days after being notified in writing to make such payment;
            2. the other party commits a material breach of any other term of the Contract, which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
            3. the other party convenes a meeting of its creditors or makes or proposes any arrangement or composition with, or any assignment for the benefit of its creditors;
            4. an order is made by a court of competent jurisdiction or a resolution is passed for the dissolution, winding-up or administration of the other party (other than due to a solvent restructuring);
            5. if a trustee, receiver, administrator or other similar officer is appointed in respect of all or any part of the other party’s business; or
            6. the other party is or becomes unable to pay its debts within the meaning of s.123 of the Insolvency Act 1986.
   9. TERMINATION
      1. Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of it shall remain in full force and effect. Termination of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination.
   10. FORCE MAJEURE
       1. The Supplier shall not in any circumstances have any liability to the Customer under the Contract if it is prevented from, or delayed in, performing its obligations under the Contract or from carrying on its business due to any act, event, omission or accident outside of the Supplier’s reasonable control including, without limitation strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party); failure of a utility service or transport network; power failure; internet downtime or available bandwidth shortage; act of God, war, riot or civil commotion; malicious damage; pandemic; compliance with any law or governmental order, rule, regulation or direction; and accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
   11. DATA PROTECTION
       1. For the purposes of this clause 11, “controller”, “processor”, “data subject”, “personal data”, “personal data breach”, “processing” “process” and “appropriate technical and organisational measures” shall have the meanings given to them in the Data Protection Legislation. “Data Protection Legislation” means all applicable data protection and privacy legislation in force from time to time in, or applicable in, the UK including the retained EU law version of the General Data Protection Regulation ((EU) 2016/679)) (UK GDPR); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended
       2. The Supplier and Customer shall comply with all applicable requirements of the Data Protection Legislation. This clause 11 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.
       3. Where the Supplier processes any personal data disclosed by the Customer as a data controller in the performance of its obligations under the Contract, such personal data shall be processed in accordance with the Supplier’s privacy and GDPR policy which can be accessed at https://www.sep2.co.uk/gdpr and https://www.sep2.co.uk/PrivacyPolicy respectively.
       4. The Supplier processes personal data as a processor on behalf of the Customer. The supplier agrees to process personal data in accordance with this clause 11.4

Instructions
Supplier shall only process (and shall ensure its employees and personnel only process) the personal data in accordance with all applicable Data Protection Legislation and this Agreement, (unless alternative processing instructions are agreed between the parties in writing).

Security
Supplier shall implement and maintain appropriate technical and organisational measures to protect the personal data against accidental, unauthorised or unlawful destruction, loss, alteration, disclosure or access.

Sub-Processing
The Supplier shall not permit sub-processing of personal data without the prior written consent of the Customer.

5. 5. 1. prior to any sub-processor carrying out any processing activities in respect of the personal data, the Supplier shall appoint each sub-processor under a written contract containing materially the same obligations in respect of processing of personal data as under this Agreement that is both compliant with applicable Data Protection Legislation and enforceable by Supplier and ensure each such sub-processor complies with all such obligations;
      2. remain fully liable to the Customer for all the acts and omissions of each sub-processor as if they were its own;
      3. ensure that all persons authorised by Supplier or any sub-processor to process the personal data are subject to a binding written contractual obligation to keep the personal data confidential; and
      4. inform the Customer of any intended changes concerning the addition or replacement of any sub-processor with at least 30 days’ prior written notice of such anticipated change, thereby giving the Customer the opportunity to object to such changes.

  Assistance
Supplier shall: Assist the Customer in ensuring compliance with the Customer’s obligations pursuant to UK GDPR and any data protection impact assessments (and any similar obligations under applicable Data Protection Legislation) taking into account the nature of the processing and the information available to the Supplier; and taking into account the nature of the processing, assist the Customer (by appropriate technical and organisational measures), insofar as this is possible, for the fulfilment of the Customer’s obligations to respond to requests for exercising the Data Subjects’ rights under Chapter III (“Rights of the data subject”) of the UK GDPR (and any similar obligations under applicable Data Protection Legislation) in respect of any personal data.

International transfers
Supplier shall not Process and/or transfer, or otherwise directly or indirectly disclose, any personal data in or to countries outside the United Kingdom and European Economic Area without the Customer’s prior written consent and in any event in compliance with applicable Data Protection Legislation.

Audit
Supplier shall, in accordance with applicable Data Protection Legislation, make available to the Customer such information as is reasonably necessary to demonstrate the Customer’s compliance with the obligations placed on it under both applicable Data Protection Legislation and this Agreement, and allow for and contribute to audits, including inspections, by the Customer.

Breach
Supplier shall notify the Customer without undue delay and in any event in compliance with applicable Data Protection Legislation and in writing on becoming aware of any personal data breach.

Deletion/return
Upon termination of the Agreement, and therefore at the end of the need to process any personal data, at the Customer’s option, Supplier shall either return all of the Personal data to the Customer or securely dispose of the personal data (and thereafter promptly delete all existing copies of it) except to the extent that any applicable law or reasonable audit procedures require Supplier to store such personal data, and confirm to the Customer in writing that it has complied with this obligation.

12. NOTICES
    1. Any notice given under this Contract shall be in writing and shall be delivered either:
       1. by sending it by first class, registered post to the other party at its address set out in this Contract (or such other address as may be notified by it in writing to the other party from time to time); or
       2. by email to:
          1. [email protected] for the Supplier, and
          2. The email address for the Customer shown in the Quotation.
       3. Any notice which is sent by post shall be deemed to have been received 2 working days after posting, or if sent by email shall be deemed to have been received at 9 am on the working day after it was sent, provided it was sent on a working day (or at 9am on the 2nd working day after it was sent if not sent on a working day) and provided in each case that the sender has not received a notice of send failure from its email system.

13. GENERAL
    1. No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
    2. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement. The parties shall negotiate in good faith to amend such provision so that, to the greatest extent possible, the amended provision achieves the intended commercial result of the original provision.
    3. No addition to, variation of, exclusion or attempted exclusion of any term of the Contract shall be binding on the Supplier unless in writing and signed by a duly authorised representative of the Supplier.
    4. Entire agreement. The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. In entering into the Contract, the Customer does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract, and the Customer shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
    5. The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, subcontract, delegate, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract. The Supplier may at any time assign, transfer, charge, subcontract, delegate, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract.
    6. No partnership or agency. Nothing in the Contract is intended to or shall operate to create a partnership between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way.
    7. Third party rights. The Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to third parties to enforce any term of the Contract.
    8. Governing Law & Jurisdiction. The Contract and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by and construed in accordance with the laws of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims).
    9. Non-poaching. The Customer shall not, without the prior written consent of the Supplier, at any time from the Contract Commencement Date to the expiry of 12 months after termination of the Contract, solicit or entice away from the Supplier or employ or attempt to employ any person who is, or has been, engaged as an employee or subcontractor of the Supplier. The Customer shall not be in breach of this clause 13.9 if it hires an employee or subcontractor of the Supplier as a result of a recruitment campaign not specifically targeted to any employees or subcontractors of the Supplier.