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Terms & Conditions

Awareness Software Limited Terms and Conditions

Master Service Agreement

BASIS OF AGREEMENT

A. The Customer is the end user of Internet services provided by Awareness Software Limited (“Awareness”), a company registered in England and Wales under company number 03805875 and with registered office at The Copper Room, Deva Centre, Trinity Way, Manchester, M3 7BG.

B. Awareness is willing to provide, and Customer is willing to accept, the Service on the terms and conditions of this Agreement.

C. This Agreement constitutes the entire agreement between Awareness and the Customer. The Customer acknowledges that they have not relied on any statement, promise or representation made or given by or on behalf of Awareness which is not set out in this Agreement.


AGREED TERMS

1. Definitions and Interpretation

In this Agreement, unless the contrary intention otherwise appears, these expressions have the following meanings:

Acceptable Use Policy” or “AUP” means Awareness’s acceptable use policy.

Agreement” means these following terms and conditions.

Awareness IPR” means all Intellectual Property Rights used by Awareness in connection with the provision of the Service.

Charges” means the charges payable by Customer for the Service.

Conditions” means the following terms and conditions.

Confidential Information” means in relation to either party information belonging or relating to that party, its business, affairs, activities, products or services, the work relating to that party by, with or for any third parties in connection with this Agreement that is not already in the public domain.

Customer Equipment” means the equipment installed in a Gateway by Customer in respect of the Service.

Customer Service” means the service provided to each End User using the Service.

Customer Service Order” means a request for Service.

Effective Date” means the date appearing at the beginning of these Conditions.

Equipment” means the equipment (including any software) provided by Awareness or its agents or contractors at each Site for the provision of the Service.

End User” means a person who receives the Customer Service from Awareness or makes use of the service provided to the Customer.

End User Installation” means an installation of Equipment at a Site by Awareness or its agents or contractors.

Extension Period” has the meaning given to that expression in clause 2.3.

Gateway”: Facilities owned or leased by Awareness for the purpose of, among other things, locating and collocating communications equipment.

Group” means in relation to a company, the company, its Parent Undertaking (if any) and all Subsidiary Undertakings of the company and of the company’s Parent Undertaking (where “Undertaking”, “Parent Undertaking” and “Subsidiary Undertaking” have the meanings given to those expressions in sections 259 and 258 respectively of the Companies Act 1985).

Initial Term” means twelve (12) months commencing from the Effective Date.

Intellectual Property Rights” means patents, design rights, trade marks, present and future copyright, database rights, semiconductor topography rights, whether registered or unregistered, and all applications for any of such rights together with any similar rights of whatever nature subsisting throughout the world.

Network” means the network, equipment and software used by Awareness to provide the Service.

Points of Connection” means the points where the Customer establishes connectivity with the Network.

Renewal Term” has the meaning given to that expression in clause 2.2.

Service” means the services means the services that Awareness provides to the Customer under the Agreement.

Service Level” means a service standard specifically identified as a Service Level in the SLA document.

SLA” means the service level agreement for the Services as may be agreed by Awareness and Customer from time to time, the current version of which is set out in the Service Level Agreement Document.

Site” means each End User location where the Equipment is to be installed.

Term” has the meaning given to that expression in clause 2.2.

Words” importing the singular number shall include the plural and vice versa.

Any reference to a statutory provision shall include that provision as from time to time modified or re-enacted provided that in the case of modifications or re-enactments made after the date of this agreement the same shall not have effected a substantive change to that provision.

The headings used in this Agreement shall not affect its interpretation.

2. Scope and Commencement of this Agreement

2.1. This Agreement sets out the terms and conditions on which Awareness shall provide the Service to Customer and the terms and conditions on which Customer shall use the Service.

2.2. This Agreement becomes effective on the Effective Date, and except as provided in clause 13, continues in full force and effect for the duration of the Initial Term. Thereafter, except as provided in clause 13, the term of this Agreement shall be automatically renewed for successive one (1) year periods (each a Renewal Term , and collectively with the Initial Term, the Term) unless either party gives written notice of termination of this Agreement at least:

  1. Thirty (30) days prior to the expiration of the Initial Term; or
  2. Thirty (30) days prior to the expiration of any Renewal Term.

2.3. If either party gives notice to terminate this Agreement in accordance with clause 2.2, then termination of this Agreement shall take effect on the day that is thirty (30) days after the date of expiration of the Initial Term or Renewal Term (as applicable). During that thirty (30) day period (called the “Extension Period” in this Agreement), Awareness shall continue to provide the Service in respect of Customer Service Orders that have previously been ordered by Customer and accepted by Awareness prior to the expiration of the Initial Term or any Renewal Term (as applicable). All terms and conditions of this Agreement shall remain in full force and effect during the Extension Period, except that Customer may not submit any new Customer Service Orders for the Service during the Extension Period. Following the Extension Period, Awareness shall not be obliged to provide the Service in respect of any Customer Service Orders.


3. Supply of Service – Awareness’s Obligations

3.1. Awareness shall supply the Service to Customer on the terms and conditions of this Agreement.

3.2. The Services shall conform to the Service Levels. If the Service or any part of it fails to conform to the Service Levels, Customer shall be entitled to the remedies specified in the SLA, which shall be Customer’s sole and exclusive remedy for such failure.

3.3. Awareness reserves the right from time to time in its sole discretion to make operational changes to the Network and the Service, provided that such changes shall not detract from or impair the provision of the Service then being supplied to Customer nor shall such changes cause Customer to incur increased charges payable to Awareness under this Agreement.

3.4. Awareness shall ensure at all times that its provision of the Service to Customer is in accordance with all applicable telecommunications laws in England and Wales.

3.5. Awareness shall carry out maintenance work, updating, remedy, repair or re-connection in accordance with the Service Levels.

4. Use of Service – Customer’s Obligations

4.1. Customer shall pay the Charges in a timely manner in accordance with clause 8.

4.2. Customer shall:

  1. Use the Service in accordance with all applicable telecommunications, data protection and other laws in England and Wales; and
  2. Not use the Service in a fraudulent or criminal manner; and
  3. Use the Service in accordance to Awareness’s Acceptable Use Policy.

4.3. If there is at any time any breach of the Acceptable Use Policy by Customer or any End User then, in addition to its other rights and remedies at law or otherwise under this Agreement and the AUP, Awareness may (but shall not be obliged to):

  1. Monitor usage, and initiate investigations into potential misuse or abuse of the Server in so far as it is carried over the Network by Customer or End Users to the extent permitted by law; and
  2. Involve, and co-operate to the fullest extent possible with, law enforcement, regulatory, and other authorised agencies in the investigation and prosecution of crimes alleged or suspected to have been committed using the Services in so far as it is carried over the Network, and Customer shall provide Awareness with all reasonable co-operation in connection with such activities (and shall not be required to do anything that is unlawful).

4.4. Awareness may at any time suspend the Service:

  1. in whole or in part if Customer breaches or otherwise fails to fully comply with the provisions of the AUP, and such suspension shall be without prejudice to any other right or remedy of Awareness arising out of such breach or non-compliance, including (without limitation) termination of this Agreement.
  2. in part (as the Service applies to the relevant End User) if any End User breaches or otherwise fails to fully comply with the provisions of the AUP, and such suspension shall be without prejudice to any other right or remedy of Awareness arising out of such breach or non-compliance, including (without limitation) termination of this Agreement.

5. Provision of Information

5.1. Customer shall reasonably co-operate from time to time with Awareness in order to provide Awareness with any information reasonably requested and directly relevant to the performance of Awareness in respect to its obligations under this Agreement, provided that any Customer Confidential Information shall be accorded treatment in accordance with clause 10.

6. Initial Obligations

6.1. Customer shall, if reasonably required by Awareness:

  1. Establish the Points of Connection as agreed between the parties from time to time as well as technical, operational and commercial arrangements in accordance with this Agreement. When agreed, the terms relating to the establishment of such new Points of Connection will be signed by both parties which will then be deemed to form part of this Agreement; and
  2. Assist Awareness in carrying out and completing, to Awareness’s reasonable satisfaction, testing of the Service (and the inter-operation of the Service and associated facilities with the Network and associated facilities), as may otherwise be reasonably directed by Awareness.

7. Equipment and Software

7.1. The Equipment shall at all times remain the property of Awareness and Customer shall have no rights or interest in the Equipment except for quiet possession and the right to use the Equipment under this Agreement to provide the Customer Service.

7.2. Any visits to a Site or repairs to Equipment made necessary by:

  1. Damage to the Equipment not caused by Awareness; or
  2. Modifications to the Equipment that have not been approved by Awareness or have been carried out by personnel unapproved by Awareness; or
  3. Improper treatment of the Equipment; or
  4. o Failure by Customer to meet the Equipment manufacturer’s specifications or environmental conditions as advised by Awareness to Customer, shall entitle Awareness to increase its Charges for the Service at the affected Site, such increase in charges to be equal to no greater than six hundred pounds (£600) per annum in respect of each such affected Site.

7.3. Customer must not knowingly, allow or permit any End User to, directly or indirectly, connect to, or use with, the Equipment or the Service or Customer Service (as the case may be), equipment:

  1. That is not technically compatible with the Equipment and the Service and/or Customer Service and approved for that purpose under relevant laws and applicable industry standards; and
  2. In a manner that does not accord with the Equipment’s instructions, user manuals, and applicable security and safety procedures.

7.4. Awareness may immediately disconnect (or require the disconnection of) any equipment connected in breach of clause 7.3.

8. Charges and Payment

8.1. Charges shall be payable in respect of the Service. All Charges shall commence on the date the Service commences and shall be invoiced by Awareness to Customer monthly in advance and shall be payable within thirty (30) days of the date of invoice.

8.2. All prices and Charges stated are exclusive of value added tax or any other applicable tax or duty payable upon such sums which shall be added if appropriate at the rate prevailing at the relevant tax point.

8.3. Failure to pay by Customer according to the terms of clause 8.1 shall constitute a material breach of this Agreement.

8.4. Awareness has a general and particular lien over any and all Customer Equipment installed in a Gateway for all money due and owing by Customer in respect of the Service (“Unpaid Charges”).

  1. If any Unpaid Charges exist at the time of cancellation of the Service, Awareness shall have the right to exercise its lien over Customer equipment by delivery of written notice thereof to Customer.
  2. If Customer does not pay all Unpaid Charges within a reasonable period after Customer’s receipt of written notice, Awareness shall have the right, without further notice to Customer, to disconnect, remove, and sell Customer equipment and apply any proceeds of sale in, or towards the satisfaction of, the Unpaid Charges and any costs and expenses incurred by Awareness thereby. Customer will continue to be liable for any Unpaid Charges that have not been fulfilled by any proceeds of sale.
  3. Awareness shall account to the Customer for any surplus amounts from the proceeds of sale within a reasonable time thereafter.
  4. Awareness shall not be liable for any loss or damage incurred by Customer arising out of Awareness’s disconnection, removal, storage or disposal of Customer’s equipment, including but not limited to loss of data.

9. Intellectual Property Rights

9.1. Nothing contained in this Agreement shall operate to convey any title or ownership interest to Customer in the Intellectual Property Rights in the Service, or the technology, skill and information relating to the use of the Service.

9.2. All legal and beneficial rights in software in whatever form that Awareness provides to Customer for the purpose of using the Service shall remain at all times Awareness’s sole property or the property of its licensor(s).

9.3. To the extent that it is so entitled, Awareness grants Customer, for the Term, a non-exclusive non-transferable licence to use such software for the sole purposes of using the Service and providing Customer Services. Customer may not reproduce, modify, adapt, translate, reverse engineer or disassemble the software but if Customer wishes to exercise its rights under section 50B of the Copyright, Designs and Patents Act 1988 then Awareness shall give Customer information about the terms on which such rights may be exercised.

9.4. Customer shall not, unless the prior written consent of Awareness has been obtained, adopt or use any trade mark, symbol or device that includes or is confusingly similar to, or is a simulation or colourable imitation of, any of Awareness IPR. Customer shall not apply to register, in its own name, in any part of the world, any of the Awareness IPR or any marks or other rights so nearly resembling them as to be likely to deceive or cause confusion and nothing in this Agreement shall be deemed to give Customer any such right. Nothing in this Agreement entitles Customer to use the Awareness IPR as part of any corporate business or trading name or style of Customer, except as permitted by this Agreement.

10. Confidential Information

10.1. Each party acknowledges that Confidential Information of the other is valuable to it and undertakes to keep that Confidential Information secret and to protect and preserve the confidential nature and secrecy of that Confidential Information.

10.2. Each party may only use, reproduce or disclose the Confidential Information of the other for the purposes of performing its obligations or exercising its rights under this Agreement.

10.3. Each party may disclose the Confidential Information of the other on a need to know basis to:

  1. Its legal advisers in order to advise it in relation to its rights under this Agreement; and
  2. Its employees or agents, provided that the disclosure is made solely for the purpose of performing its obligations or exercising its rights under this Agreement.

10.4. Each party may disclose Confidential Information of the other:

  1. To the extent required by law for lawful requirement of any government or governmental body, authority or agency having authority over the disclosing party; or
  2. If required in connection with legal proceedings relating to the Agreement, but in each case subject to the disclosing party giving the other sufficient notice of any proposed disclosure to enable that party to seek a protective order or other remedy to prevent the disclosure.

10.5. The obligations of each of the parties in this clause 10 do not apply to any Confidential Information that:

  1. The receiving party can prove was in its possession at the date it was received or obtained; or
  2. The receiving party obtains from some other person entitled to disclose the same, or
  3. Is in, or has become part of, the public domain other than as a result of a breach of the obligations of confidentiality under the Agreement.

10.6. Each party acknowledges that damages may not be an adequate remedy in the event of breach of this clause and that the other shall be entitled to seek injunctive relief to protect the confidentiality of its Confidential Information.

10.7. The rights and obligations of the parties under this clause survive termination of this Agreement for a period of three (3) years.

11. Non-Solicitation

11.1. Unless the prior written consent of Awareness has been obtained, Customer shall not and shall procure that its employees, agents, officers and representatives whether directly or indirectly shall not solicit, divert hire, retain (including as a consultant) or encourage to leave the employment or contract period of Awareness and any employee or contractor of Awareness, or hire or retain (including as a consultant) any former employee of Awareness who has left the employment or contract period of Awareness within twelve (12) months prior to such hiring or retention.

12. Exclusions and Limitations of Liability

12.1. Neither party shall be liable to the other for any indirect or consequential damages, or for any loss of data, revenues, profits, business, goodwill or anticipated savings howsoever arising in connection with this Agreement whether in contract, tort or otherwise, including liability for negligence or breach of statutory duty, (but excluding liability for death or personal injury caused by its negligence, or for fraud, where no limit applies)

12.2. Subject to clause 12.1, Awareness’s maximum aggregate liability arising in connection with all claims arising in connection with this Agreement in the twelve (12) month period commencing on the Effective Date, and in each twelve month period beginning on an anniversary of the Effective Date, whether arising in tort (including negligence), contract, or otherwise, shall be limited to the lesser of either (a) 50% of the Charges payable by Customer in the relevant period; or (b) ten thousand pounds sterling (£10,000).

12.3. The Service (including the provision of the Equipment and any software) is supplied ‘as is’ and Awareness’s entire obligations and liabilities in respect of that supply are as stated in this Agreement and all other innocent or negligent representations (but not fraudulent), conditions, warranties and terms express or implied whether by statute, law or otherwise (including without limitation those relating to the merchantability and fitness for purpose of the Services) are hereby excluded to the fullest extent permitted by law.

13. Indemnity

13.1. Customer shall indemnify, defend and hold Awareness and Awareness Group harmless against claims, losses, damages, costs (including all reasonable legal fees on a solicitor – own client basis) and liability (including arising from any breach of confidentiality obligations or in connection with any infringement of Intellectual Property Rights) arising from or in connection with:

  1. Any connection or communication sent, provided or stored in connection with the Service; or
  2. Use of any Equipment in a manner inconsistent with the terms of this Agreement.

14. Termination

14.1. Either party may, by notice, terminate this Agreement immediately without prejudice to any other rights or remedies it may otherwise have if:

  1. The other party is guilty of any material breach, non-observance or non-performance of its obligations or any of them and does not remedy the same within thirty (30) days of notice of such breach being given by the non-defaulting party; or
  2. The other party is unable to pay all or a material part of its debts as they fall due or is deemed to be unable to pay its debts under section 123 of the Insolvency Act 1986, makes or commences negotiations with a view to making a general re-scheduling of all or a material part of its indebtedness, a general assignment, scheme, arrangement or composition with its creditors generally or any class of its creditors; or
  3. The other party ceases or suspends or threatens to cease or suspend carrying on all or a material part of its businesses; or
  4. The other party takes any corporate action, or any step is taken or legal proceedings are started, for or towards:
    1. Its winding-up, dissolution, liquidation, or re-organisation, other than to reconstruct, merge or amalgamate while solvent (and with the prior written approval of the first party); or
    2. The appointment of a receiver, administrator, manager, or other similar officer, of, to or over it or any of its revenues, assets or undertakings; or
    3. The other party seeks or is granted protection from its creditors under any applicable legislation.

15. Consequences of Termination

15.1. Upon termination of this Agreement for any reason:

  1. All outstanding Charges shall remain payable in accordance with clause 8; and
  2. Customer shall, within three (3) months of the date that this Agreement is terminated, immediately cease to make use of the Service any supplied Equipment or software; and
  3. Customer shall immediately surrender possession of the Equipment and any supplied software in good order, repair and condition, to Awareness or its agents, fair wear and tear excepted; and
  4. Customer shall for a reasonable period following termination allow (or procure the right for, as the case may be) Awareness to enter each Site during normal business hours for the purpose of removing any or all supplied Equipment or software.

15.2. Termination of this Agreement by either party shall be without prejudice to any other legal or equitable right that may have accrued prior to the date of termination.

15.3. This clause 15 together with clauses 4, 5, 6, 7, 8, 9, 10, 16 and 17.3 shall continue to apply not withstanding termination of this Agreement, however caused.

16. Regulatory Matters

16.1. Awareness may refuse, suspend, or discontinue the supply of the Service to Customer in any location (including any Site) by providing to Customer such prior notice as is appropriate under the circumstances, if Awareness, in its reasonable discretion, determines that such supply may in any way jeopardise Awareness’s ability or authority to provide the Service in any jurisdiction. In the event of such refusal, suspension, or discontinuation of Service, the parties shall consult with each other in an attempt to find an alternative solution, if any, that would allow the provision of the Service to such Site.

17. Force Majeure

17.1. Neither party shall be responsible or liable for any failure to perform its obligations under this Agreement for reasons beyond its reasonable control including but not limited to lightning, flood, war, exceptionally severe weather, civil disorder, industrial disputes (whether or not involving that party’s employees), acts of third parties, local or central government or other competent administrative authority.

17.2. Awareness shall not be responsible or liable for any failure to perform its obligations under this Agreement if a third party refuses to or delays the provision of a service to it (except where expressly stated otherwise in the SLA), or if Awareness is prevented from performing its obligations under this Agreement because of an order, request, instruction, mandate, regulation or law of government, competent administrative authority or emergency services organisation.

17.3. If Awareness is unable to supply the Service due to any of the events set out in clause 17.1 or 17.2 for more than thirty (30) consecutive days, Customer may cancel the Service, without liability to either party.

18. Notices

18.1. All notices between the parties shall be in writing and addressed (as applicable) to the registered office of the parties or to such address as may have specified to from time to time, and shall be delivered personally, sent by pre-paid first class post, recorded delivery, commercial courier or by confirmed facsimile.

19. Complaints

19.1. If the Customer has a complaint about the Services, then the Customer should contact us by means of an e-mail to support@aware-soft.com. Awareness will try to address any such complaints as soon as reasonably possible.

19.2. If the Customer feels that the complaint was not addressed to their satisfaction, then the Customer may escalate the complaint by means of a notice under this Agreement. Upon receipt of such notice, the complaint will be assessed by a company director and a full response will be made within fifteen (15) working days.

20. Assignment

20.1. Customer may not assign the benefit of this Agreement in whole or in part without Awareness’s prior written consent.

21. Governing Law and Jurisdiction

21.1. The law of England and Wales governs this Agreement. The parties submit to the exclusive jurisdiction of the courts of England and Wales and the courts of appeal from them in respect of any dispute or matter arising out of or in connection with this Agreement.

22. General

22.1. No Waiver: No failure or delay by either party in exercising any right or remedy under this Agreement (and no course of dealing between the parties) shall operate as a waiver of that right or remedy.

22.2. Invalidity: If any provision of this Agreement or any part of such provision is held invalid or unenforceable, the remainder of the provisions contained in this Agreement will not be affected thereby and each remaining provision or part thereof will be valid and enforceable to the full extent permitted by law.

22.3. Third Party Beneficiaries, Partnership, Agency: This Agreement is solely for the benefit of the parties. No other person (including any third party user of the Service) is intended to have nor shall have any rights whatsoever under it, whether for injury, loss or damage to persons or property, or for economic loss, or otherwise. Accordingly, the Contracts (Rights of Third Parties) Act 1999 shall not apply to this Agreement. This Agreement is not intended to create a joint venture or partnership between the parties and neither party is authorised to act as the agent of the other.

22.4. Entire Agreement: Except in the case of fraud, this Agreement represents the entire agreement between the parties and supersede all other agreements, oral or written, and all other communications between the parties relating to the Service.

22.5. Publicity: Customer agrees that Awareness may advertise its involvement with Customer in Awareness’s marketing materials and on the Awareness website, and grants Awareness a limited and free licence to use Customer trademarks and trade names for that limited purpose.

22.6. Amendments: This Agreement may only be amended if that amendment is in writing and signed by a duly authorised representative of each party.

22.7. Subcontracting: Awareness may subcontract all or part of the performance of its obligations under this Agreement without notice to Customer or requiring its consent.


IT SUPPORT

23. IT Support Services

23.1. “IT Support Services” comprises of the following:

  1. Awareness will undertake the day-to-day management of the Customer hardware, software and systems (“IT Infrastructure”) as defined in clause 24, or where otherwise disclosed by the Customer and agreed by Awareness as part of a Customer Service Order.
  2. Awareness will monitor the key components, as Awareness determines in its sole discretion, of the IT Infrastructure and will proactively correct faults as may be reasonably expected and make recommendations to the Customer concerning the health of the key components.
  3. Awareness will provide a helpdesk within Working Hours for the Customer to report any faults with the IT Infrastructure.

23.2. Customer shall:

  1. Nominate a representative to liaise with Awareness on all matters relating to the IT Support Services.
  2. Supply to Awareness a list of its employees, agents, officers or representatives whom are authorised to make change requests to Awareness relating to the IT Infrastructure.
  3. Inform Awareness about potential or actual changes to the IT Infrastructure, or any directly or indirectly related systems which may have a material impact on the ability of Awareness to perform its obligations.
  4. Provide and maintain a list of users authorised to access to the IT Infrastructure, together with the scope of such access.
  5. Inform Awareness in a timely manner of users who no longer require access to, or should be excluded from, the IT Infrastructure.
  6. Inform Awareness about any faults concerning the IT Infrastructure as per clause 40.2.

24. IT Support Services Inclusions and Exclusions

24.1. The IT Support Services includes support for the following hardware, software and systems:

  1. Microsoft Windows, Microsoft Server, Microsoft Office, Microsoft SQL Server, Microsoft Exchange and Apple OS-X running on Customer servers, workstations or laptops.
  2. Printers, routers, firewalls, hubs, switches, anti-virus and anti-spam software where the specification of such has been agreed by Awareness.
  3. Android, Windows Phone and Apple IOS mobile phone devices or tablets.
  4. Broadband, leased-line or other communications services used to provide Internet connectivity to Customer premises where such broadband, leased-line or other communications services are provided by Awareness.

24.2. The IT Support Services expressly excludes support for the following:

  1. Modifications and enhancement to the functionality of Customer hardware, software and systems unless by prior agreement with Awareness.
  2. Provision of any parts.
  3. Relocation of Customer hardware, software or systems, unless by prior agreement with Awareness.
  4. Physical security of the Customer hardware, software and systems which may be sited on Customer premises.
  5. Penetration or other similar security testing and evaluation of Customer hardware, software or systems.
  6. The backup, retention or restoration of Customer data.
  7. Hardware, software and systems which have been declared “end of life” or otherwise unfit for purpose by the relevant manufacturer.
  8. Any damage directly or indirectly caused by malicious software (e.g. viruses, Trojans or other malware) or malicious activity (e.g. “hacking” or other similar unauthorised access) involving Customer hardware, software or systems.
  9. Disaster recovery, business continuity or other similar planning in relation to the Customer hardware, software and systems.
  10. Broadband, leased-line or other communications services used to provide Internet connectivity to Customer premises where such broadband, leased-line or other communications services have not been provided by Awareness, unless specified on the Customer Service Order.
  11. Programming, consultancy or other similar services which would fall outside what would reasonably be expected of a typical “first-line” desktop IT support engineer (e.g. such exclusions might include, but shall not be not limited to, database, web server or other infrastructure management associated with e-commerce activities).

COLOCATION

25. Colocation Services

25.1. “Colocation Services” comprises of the following:

  1. The provision by Awareness of rack(s) space or suite as stated in the Customer Service Order (“Colocation Space”) for Customer to locate and operate Customer Equipment.
  2. The provision of a connection point to a protected single-phase 230 volt AC power supply providing a maximum amount of power as stated in the Customer Service Order.

25.2. Customer shall maintain the Colocation Space in orderly and safe condition, and shall return the Colocation Space to Awareness at the conclusion of the Agreement in the same condition (reasonable wear and tear excepted) as when the Colocation Space was delivered to Customer.

25.3. Customer shall adhere to and abide by all security and safety measures established by Awareness whilst in the Colocation Space.

25.4. Customer shall not do or participate in any of the following:

  1. Misuse or abuse any Awareness property or equipment or third party equipment.
  2. Make unauthorised use of or interfere with any property or equipment of any other Awareness customer, or any other tenant of the co-location facility.
  3. Make any representation on behalf of Awareness.

26. Colocation Access

26.1. Awareness will provide escorted physical access to the Customer Equipment in the Colocation Space at the request of Customer provided the Customer gives at least twenty-four (24) hours’ notice of such a request.

26.2. Any representatives of Customer must bring a form of photo-ID as defined as legally acceptable as a form of identification.

26.3. Customer accepts that access to the Colocation Space will be denied if clauses 26.1 and 26.2 are not satisfied.

27. Power Overages

27.1. Awareness will measure the sustained load consumed by the Customer Equipment in the Colocation Space and will provide power to an average of the load specified in the Customer Service Order.

27.2. Customer shall accept that a Power Excess Fee will be levied by Awareness in the event of the sustained load exceeding the load specified in the Customer Service Order.

28. Power Surcharge

28.1. Awareness reserves the right to levy a power surcharge should Awareness’s power costs rise. Any such power surcharges will be passed on at cost.


BANDWIDTH

29. Bandwidth Overages

29.1. If the Customer chooses a “per gigabyte” bandwidth billing methodology, the Customer will agree to a monthly bandwidth transfer quota, expressed in gigabytes per month. Should the Customer exceed the agreed amount of transfer, Awareness will charge the Customer an overage rate as described in the Customer Service Order.

29.2. If the Customer chooses a “per megabit” bandwidth billing methodology, the Customer will agree to a monthly committed data rate, expressed as megabits per second. Any bandwidth exceeding the committed data rate, as measured by industry standard 95th percentile billing, Awareness will charge the Customer an overage rate as described in the Customer Service Order.


DOMAIN NAMES

30. Domain Name Registration Services

30.1. Awareness is a Nominet TAG holder (AWARE-SOFT) and use several third parties to register domain names. If the Services include any registration of domain names, Awareness does not warrant that

  1. the domain names requested will be accepted for registration by the relevant registrar; or
  2. any registration will be successful;

30.2. Awareness shall have no liability if any domain name chosen by the Customer infringes the Intellectual Property Rights, or any other rights, of any third party.

30.3. The registration of the domain name, and the ongoing use of that domain name, shall be subject to the domain name registry's terms and conditions from time to time, and, in submitting an application for registration, the Customer agrees that they have requested, considered and accepted those terms and conditions. You may find such terms and conditions for a particular family of domain names at https://www.aware-soft.com/terms-and-conditions-domains.php.

30.4. Awareness reserves the right to suspend or cancel any application for registration of a domain name or refuse to host any domain name if Awareness believes the Customer is in breach of this Agreement.

30.5. Awareness will inform the Customer that a renewal date is impending at least thirty days before the domain name is due for renewal, however it is the responsibility of the Customer to stay up-to-date with any domain name registrations provided as part of the Services to ensure they are renewed if so desired and that all relevant renewal fees are paid.

30.6. If the Customer requests that they no longer wish to have the domain name renewed or fail to pay all relevant renewal fees, it will be left to expire and any Domain Registration Services that we provide applicable to that domain name will be suspended. The domain name will then go into a protected period, after which the domain name will be suspended by the domain name registry and will go into a grace period. Please contact us for more information on the protected period and grace period for a particular domain name, as these differ from domain name registry to domain name registry. If the Customer changes their mind and still wishes to renew the domain name within the grace period, the Customer still can but the Customer may be charged additional fees as set out by the domain name registry. Any such additional fees will be passed on to Customer, and all outstanding fees (including all relevant renewal fees) will need to be settled in full before the renewal of the domain name. After the grace period the domain name will be cancelled and deleted from the register and made available for resale through a third party registrar. Awareness will not guarantee the renewal of a domain name after the grace period expires.

30.7. Awareness commits to acknowledge all requests for Maintenance Services in relation to Domain Registration Services within one full Working Day from when the request for Maintenance Services was made. Awareness aims to resolve any request for Maintenance Services in relation to Domain Registration Services within five Working Days from the time of acknowledgement, although we cannot guarantee any particular result or outcome nor within any particular time.


ACCEPTABLE USE POLICY

31. Interpretation

31.1. Capitalised expressions used in this Schedule shall have the meanings set out in the Agreement.

32. Acceptable Use Policy

32.1. Customer agrees to follow any reasonable procedures for use of the Service notified by Awareness and accepts that Awareness may make changes to the Service that do not increase the cost to Customer of accessing or using the Service.

32.2. Customer shall not, and shall procure that its employees, agents, officers and representatives shall not, knowingly use the Service to commit, or aid in the commission of, any crime or fraud or act that violates any applicable local, national or international law or regulation.

32.3. Customer shall not and shall procure that its employees, agents, officers and representatives shall not, knowingly use the Service to transmit, distribute, disseminate, publish, or store any material that

  1. Is in violation of any applicable local, national, or international law or regulation or Awareness security policy in effect from time to time; or
  2. Infringes any patent, trademark, trade secret, copyright or other intellectual property right of any person; or
  3. Is defamatory, abusive, obscene, indecent, or harassing; or that threatens or encourages bodily harm, destruction of property, or infringement of the lawful rights of any party; or otherwise constitutes an illegal threat; or
  4. Violates the privacy of any party as protected by applicable local, national, or international law or regulation; or
  5. Contains software viruses, worms, Trojan horses, harmful or malicious computer code, or any computer code, files or programs designed to disrupt, destroy, invade, gain unauthorised access to, corrupt, observe, or modify without authorisation, data, software, computing or network devices, or telecommunications equipment; or
  6. Is unsolicited advertising, promotional material, bulk e-mail, a chain letter or any other form of solicitation.

32.4. Customer shall not and shall procure that its employees, agents, officers and representatives shall not, knowingly use the Service to intercept or monitor data or messages transmitted over the Network.

32.5. Customer shall not and shall procure that its employees, agents, officers and representatives shall not, knowingly use the Service to access any computer, network, or data without authorisation or in a manner which exceeds authorisation including, any attempt to:

  1. Retrieve, alter; or destroy data;
  2. Probe, scan or test the vulnerability of a system or network, or
  3. Breach or defeat system or network security, authentication, authorisation, confidentiality, intrusion detection, monitoring, or other security measures.

32.6. Customer shall not and shall procure that its employees, agents, officers and representatives shall not, knowingly use the Service to:

  1. Impersonate any party or entity by adding, removing, or altering header information of the network, e-mail, or other messages transmitted over the Network;
  2. Transmit over the Network messages that have been electronically signed using a fraudulently obtained public key certificate or with forged electronic signature, or
  3. Use the Network or any Service to commit any other form of impersonation or forgery.

32.7. Customer shall not and shall procure that its employees, agents, officers and representatives shall not, knowingly interfere with or disrupt the business operations, service, or function of Awareness, the Network, or any computer, host, network, or telecommunications device.

32.8. Customer may not and shall procure that its employees, agents, officers and representatives shall not, knowingly tamper with or attempt to gain unauthorised access to Awareness Equipment.

32.9. Customer shall promptly report to the Awareness any event, condition, or activity indicating a possible or actual (a) violation of this AUP, or (b) breach or compromise of the security of the Network or the Service including, without limitation, any event, condition, or activity occurring within any other telecommunications or computer network or systems that could affect the security of (i) the Network or (ii) the Service.

32.10. In addition to its other rights and remedies under this Agreement, Awareness may:

  1. Monitor usage, and initiate investigations into potential misuse or abuse, of the Service in so far as it is carried over the Network by Customer and/or End Users to the extent permitted by law; and
  2. Involve, and co-operate to the fullest extent possible with, law enforcement, regulatory, and other authorised agencies in the investigation and prosecution of crimes alleged or suspected to have been committed using the Service including disclosure of information to the extent such disclosure is permitted by law; and
  3. Terminate or suspend use of the Network and Service by any party suspected to have breached or otherwise not fully complied with this Acceptable Use Policy; and
  4. After consultation with and giving prior notice to the customer and/or End User, completely or partially suspend use of, and access to, the Network or Services, by Customer and/or End Users as Awareness determines in its sole discretion, required to maintain the security or operations of
  5. The Awareness Network or Services, or
  6. The computer networks or systems of any other Awareness customer, where Awareness determines such security or operations are under potential, threatened, or actual attack or compromise.

SERVICE LEVEL AGREEMENT

33. Service Level Agreement Definitions and Interpretation

Affiliates” means any entity or person controlled by, controlling or under common control with a party to this Agreement.

"Fault" shall be categorised as follows:

"Critical Fault" means a Fault which has a material impact on the Service and the Service is released by the customer to Awareness to carry out maintenance activity.

"Minor Fault" means any Fault which is not a Critical Fault.

"Network" means the network used by or on behalf of Awareness for the provision of the Service.

"Planned Works" means any scheduled construction or maintenance activities in relation to the Service announced by Awareness from time to time.

34. Service Level Agreement

34.1. The Service Level Agreement sets out the special terms and conditions on which Awareness shall provide the Services to Customer.

34.2. The Service Level Agreement is subject to and shall be interpreted in accordance with the other terms of the Agreement.

34.3. The purpose of the Service Level Agreement is to set out the agreed processes and procedures for the supply and operation of the Services by Awareness, as well as specific service measures or commitments.

34.4. No changes may be made to this Service Level Agreement, except by written amendment dated and signed by the parties.

35. Provision of Service

35.1. Awareness shall provide the Services, from the Effective Date, and shall meet the commitments set out in this Service Level Agreement.

35.2. If Awareness fails to comply with clause 35.1, customer shall be entitled to the specific remedies identified in clause 39 of this Service Level Agreement. The identified service remedies shall be Customer’s sole and exclusive remedy in respect of the service failures to which they apply.

35.3. Any variations or changes in the Services, which have a material impact on Customer, shall be subject to the Change Control (see 44.1 – 44.3) provisions to this Service Level Agreement.

36. Maintenance Services

36.1. Awareness does not guarantee that the Services will be free from faults, however Awareness shall use reasonable endeavours to correct any errors or omissions in the Services as soon as practicable during Working Hours after receiving full and clear information on them.

36.2. If the Customer detects a Fault, it shall report the Fault to Awareness. It is agreed that Faults may only be reported via:

  1. Telephone call to 0845 862 0355 or or 01625 808 808 within Working Hours; or
  2. Email to support@aware-soft.com within Working Hours; or
  3. An out-of-hours contact number which the Customer may subscribe to as an adjunct to this Service Level Agreement.

36.3. Awareness shall use reasonable endeavours to respond to a request for Maintenance Services within a reasonable time, although usually within the Response Time as defined in Clause 41.1. Awareness cannot guarantee any particular result or outcome nor within any particular time. In particular, without limitation, Awareness may need to obtain support in turn from a third party that assists Awareness with the provision of the Maintenance Services.

36.3. Customer shall be responsible for obtaining all required authorisations, approvals or consents regarding access by Awareness (providing copies to Awareness) to the Sites and the performance of any works at the Sites for the purpose of providing or maintaining the Services. Customer shall indemnify Awareness against any claims, liabilities or costs resulting from failure to comply with this clause 36.3.

36.4. The following are expressly excluded from the Maintenance Services:

  1. rectification of lost or corrupted material; and
  2. rectification of any failure by the Customer to take appropriate backups; and
  3. resolving faults or defects that arise as a result of the Customer’s failure to comply with this Agreement or any other agreement between the Customer and Awareness.

36.5. Awareness provides the Maintenance Services with every Agreement as an inclusive part of the Services, excluding IT Support Services.

37. Access To Sites

37.1. Customer shall permit the employees, agents and sub-contractors of Awareness to have access to the Sites during normal working hours, and at other times by arrangement, for the purpose of providing and maintaining the Service.

37.2. Customer acknowledges that in the event of delay or refusal to permit Awareness representatives’ access to the Sites, the Service availability related service remedies shall not apply for the period during which the Awareness representatives are delayed or prevented from such access.

37.3. Customer shall be responsible for obtaining all required authorisations, approvals or consents regarding access by Awareness (providing copies to Awareness) to the Sites and the performance of any works at the Sites for the purpose of providing or maintaining the Services. Customer shall indemnify Awareness against any claims, liabilities or costs resulting from failure to comply with this clause 37.3.

38. Service Levels

38.1. The Service availability measure during a twelve (12) month period is: 99.95%.

38.2. Availability excludes any outages as a result of Planned Works, Minor Faults, customer provided power supply and force majeure events or any disruptions to the Services caused by Customer. Availability measures exclude any period of delay or refusal to provide access to the Sites.

39. Service Exclusions

39.1. DSL Services (including, but not limited to, ADSL, SDSL, VDSL, “Fibre To The Cabinet”, FTTC or “Fibre Broadband”) are excluded from this Service Level Agreement as Awareness is unable to contract a Service Level Agreement with BT Group plc.

40. Customer Required Actions

40.1. Customer shall be responsible for the monitoring of the Services under this Service Level Agreement.

40.2. If the Customer detects a Fault, it shall report the Fault to Awareness. It is agreed that Faults may only be reported via the methods described in Clause 36.2.

41. Fault Response Time

41.1. The Service has a target response time ("Response Time") of four (4) working hours for all Major Faults, from the time when Customer notifies a Critical Fault to Awareness to the time at which an engineer attends Site or Gateway or is available remotely ready to commence resolution of the problem.

41.2. It is agreed that “working hours” means 09:00 to 17:00 Monday to Friday, excluding public holidays.

42. Service Remedies

42.1. Reduced charges, calculated pursuant to clause 42.2, shall apply where Awareness fails to meet the Response Time as defined in clause 41.1 for each of the Services provided under this Service Level Agreement.

42.2. Awareness will apply a reduction in respect of the charges that shall be payable in respect of the Service of one (1) day per additional four (4) hours that Awareness fails to meet the Response time.

42.3. Reduced credits, calculated pursuant to Clause 42.4, shall apply where Awareness fails to meet the Service availability as defined in clause 38.1 for each of the Services provided under this Service Level Agreement.

42.4. Awareness will apply a reduction in respect of the charges that shall be payable in respect of the Service of one (1) day per additional 0.1% that Awareness fails to meet the Response time up to a maximum of thirty (30) days of charge reduction per twelve (12) month period.

42.5. Reductions to Service charges shall only apply where Customer reports a fault (“Customer Fault Submission”) to Awareness as under clause 38.1 and makes a claim in respect of failure to meet either clause 38.1 or clause 41.1. All such claims must be submitted to Awareness within thirty (30) days from the Customer Fault Submission and in accordance with clause 18.1.

42.6. Any reduced charges under this Service Level Agreement will be confirmed by credit note issued by Awareness to Customer, confirming the adjustment to the charges otherwise available.

43. Planned Works

43.1. Awareness shall be responsible for providing maintenance on all infrastructure and equipment relevant to the Services supplied under this Agreement up to the identified Points of Connection, unless otherwise agreed in writing with Customer.

43.2. All maintenance work shall, wherever possible, be planned in advance to minimise interruption to the Services. Customer shall be informed of any such work or activity.

43.3. With the exception of emergency works, or events outside the control of Awareness, Awareness shall provide at least one (1) working days prior notice to Customer of any Planned Works that will affect the availability of Services.

44. Change Control

44.1. Customer will appoint a suitably experienced and qualified “Authorised Representative” who shall be the primary representative of the Customer in relation to Service administration and technical activity. Awareness may rely on the authority of the Authorised Representative to represent the Customer for the purposes of Service administration and change control.

44.2. If either Awareness or Customer wishes to alter the Service, the party making the request will submit a change request to the other party describing the proposed change. The receiving party will provide an initial response to the change request within seven (7) days (or such other time as is agreed), identifying the impact of the change on the Services including implementation dates(s) or applicable commercial terms.

44.3. If Awareness and Customer agree to proceed with the change, Awareness will issue a Service amendment which shall be signed by both parties confirming the applicable terms, impact on the Service and implementation date(s). In the event that Awareness and Customer are unable to agree on the proposed change, the party submitting the change request. The parties agree to make reasonable and good faith efforts in responding to periodic change requests and in negotiating related Service amendments.

This document was most recently updated on 26th January 2016.

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  • Email: sales@aware-soft.com
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