Terms and Conditions

In this Agreement the following words and expressions shall have the following meanings:

“Authorised Personnel” means the Customer’s personnel as notified to ICM in writing in accordance with the Procedures Manual.

“DR Direct Service” means the services described within the relevant Module.

“Business Day” means Monday to Friday 9am to 5pm (excluding bank and public holidays).

“Charges” means the amount payable as detailed in this Agreement and the Schedules and subsequent amendments thereto.

“Commencement Date of Services” means the date upon which the DR Direct Service shall commence and the date from which the Charges shall apply.

“Customer” means the party as detailed in Schedule A of this Agreement.

“Disaster” means any unplanned event which causes the loss or non-availability of the Site Address and/or Supported Hardware.

“Equipment” means the items of equipment provided by ICM as detailed in Schedule B to this Agreement as varied in writing by agreement from time to time in accordance with this Agreement.

“ICM” means the party as detailed in Schedule A of this Agreement.

“ICM Facility” or “ICM Facilities” means the alternative workplace service centre provided by ICM as specified in the Schedules.

“Invoke” or “Invocation” means the procedure by which a customer shall formally notify ICM of the occurrence of a Disaster requiring the DR Direct Service as described in the ICM procedures manual.

“IT-Direct” means the service that provides IT equipment at the Customer’s site.

“Module” means the DR Direct service module attached to this Agreement.

“Office-Direct” means the service that provides alternative workspace at an ICM Facility.

“Procedures Manual” shall mean the ICM manual containing details of the procedure for use of the DR Direct Service as amended from time to time.

“Proprietary Rights” means all intellectual property rights including copyright, confidential information, database rights, patents, design rights and trade marks.

“Rehearsal” the means by which the Customer can ensure that its operating system, application software and procedures operate to the Customer’s satisfaction on the ICM Facility.

“Rehearsal Days” means the number of Business Days during which the Customer may carry out Rehearsals.

“Site Address” means the Customer address/addresses covered by this Agreement, as detailed in Schedule B.

“Software” means data, operating and application software provided by the Customer essential for the correct operation or restoration of a specific system available in appropriate magnetic or electronic format.

“Supported Hardware” means the Customer’s equipment located at the Site Address.

1.1 A detailed description of the services to be provided by ICM under this Agreement is contained within the relevant Module and referenced in Schedule B.

1.2 ICM reserves the right to charge at normal time and material rates where the Customer requests ICM to perform additional services which are not contemplated in this Agreement.

1.3 ICM shall provide the Customer with a copy of the Procedures Manual applicable to this Agreement.

1.4 The DR Direct Service is provided on a shared risk basis. ICM will therefore respond to customers in the order in which Invocations are received by ICM.

2.1 It is the Customer’s responsibility to maintain adequate copies (or provide original versions) of such software and data as is The Customer will indemnify ICM against any loss, damage, cost or expense suffered or incurred by ICM as a result of any claim by a third party relating to ICM’s use of the Software (including any Proprietary Rights) on behalf of the Customer.

2.2 The Customer shall be responsible for its Software including restoration of such Software in the event of loss. Restoration from the Customer’s backup media may be attempted by ICM at the request of the Customer provided that such work will be chargeable to the Customer.

2.3 The Customer shall ensure that:

2.3.1 ICM is in possession of the latest information and configurations relating to the Customer’s DR Direct requirements

2.3.2 all changes to the Supported Hardware which affect provision of the DR Direct Service are notified to ICM as soon as reasonably practicable following such changes being made;

2.3.3 the ICM Facility and Equipment provide sufficient capacity to support the Customer’s applications and service requirements and the Customer will use any Rehearsal to ensure its DR Direct procedures are adequate;

2.4 The Customer shall be responsible for providing at its expense:

2.4.1 back-up tapes of its Software and all consumable items, including but not limited to, tapes and stationery; and

2.4.2 suitably skilled staff to load the Software onto the Equipment and to operate the same thereafter;

2.5 The Customer shall use the ICM Facility and Equipment solely for the purpose for which they are made available and the Customer will not modify the ICM Facility or Equipment without the prior written consent of ICM. The Customer will indemnify ICM against any loss or damage to the Equipment or ICM Facility caused by the negligence or default of the Customer, its employees, agents or sub-contractors.

2.6 The Customer is responsible for any additional costs incurred in providing the DR Direct Service including additional cleaning, catering and communications costs. Additional Rehearsal times, unless otherwise agreed in writing by ICM, shall be charged at the rates set out in the Schedules.

2.7 The Customer undertakes that it will not Invoke the DR Direct Service where the Disaster can be reasonably and promptly remedied by the Customer purchasing replacement equipment, calling its maintenance service provider or utilising in-house resources and personnel.

2.8 The Customer shall ensure that the DR Direct Service is not improperly Invoked, and shall indemnify ICM against any costs or liabilities incurred as a consequence of the Customer Invoking the DR Direct Service other than for a Disaster.

2.9 The Customer shall use all reasonable endeavours to minimise the period of use of the Equipment and/or ICM Facility and ensure its return to ICM as soon as the Site Address and or Supported Hardware is operational;

3.1 Each party will take all reasonable precautions to protect the health and safety of personnel and specifically each will advise the other of any unnatural hazards, risks or dangers of which it is aware or becomes aware which might affect the safety or well being of personnel during any visit to the ICM Facility whether during the rendering of the DR Direct Service in accordance with the terms of this Agreement or otherwise.

3.2 The Customer will designate a representative for the purposes of making decisions and to liaise with ICM regarding the DR Direct Service.

3.3 ICM personnel provided under this Agreement will remain under the management of ICM.

4.1 ICM and the Customer undertake that they will comply with their obligations under the Data Protection Act 1998 and each party will use all reasonable endeavours to treat the other party’s data in the same manner with regard to integrity and security as it would its own.

4.2 ICM will not be responsible for the security or integrity of the Customer’s Software during its processing on ICM’s Equipment or transmission via public telecommunications facilities.

4.3 Each party shall treat as confidential this Agreement and all the information obtained from the other pursuant to this Agreement (collectively referred to as the ‘Information’) and shall not divulge the information other than in accordance with this Agreement or with the other party’s prior written consent. The parties shall not be liable for disclosure of information where:

4.3.1 the information is or becomes publicly available other than through breach of this paragraph;

4.3.2 either party subsequently and lawfully obtained the Information from a third party or parties without breach of this paragraph as shown by documentation sufficient to establish that the third parties are a lawful source of the information;

4.3.3 the parties had the information prior to its disclosure as shown by documentation sufficient to establish such knowledge; or

4.3.4 the parties are required by court order, government regulation or other national authority to disclose such information to a third party.

While this Agreement is in force and for a period of six months from its termination for any reason, neither party will directly or indirectly solicit or otherwise offer employment to any person employed by or acting on behalf of the other.

6.1 The Customer accepts that as a syndicated service there is the potential for non delivery of the DR Direct Service due to other customer’s Invoking the Service ahead of the Customer.

6.2 ICM shall be under no obligation to supply the DR Direct Service if the Invocation occurs as a direct consequence of neglect by the Customer, failure of Software (including incidence of date change or euro readiness), or failure to act on any event that might cause a Disaster.

6.3 The interaction of the Equipment and Software is complex and as such, ICM cannot warrant that the operation of the Equipment will always be uninterrupted or free from error or that the data stored can always be accessed. In the event of any failure of any part of the Equipment, ICM shall use reasonable endeavours to remedy any defect as soon as practically possible.

6.4 The Customer acknowledges that in using the DR Direct Service and ICM Facilities nothing contained in this Agreement shall create or be construed as creating a legal interest in the ICM Facilities or DR Direct Service and the Customer further agrees and acknowledges that it will not obtain any security of tenure under Part II of the Landlord and Tenant Act 1954 (as amended) by virtue of this Agreement and nor shall it at any time have any title to or interest in the Equipment and further agrees that it will not allow any third party to acquire any such title or interest.

6.5 The Customer shall have the right to Invoke the Service no more than twice in any contract year.

7.1 The DR Direct Service will be provided at the ICM Facility shown in the relevant Schedule. ICM may change this site by giving the Customer no less than 90 days written notice.

7.2 During the provision of the DR Direct Service the Customer will in no way damage, alter, relocate, remove, or in any other way interfere with the Equipment or make any claim to ownership or possession of the Equipment or any part thereof. In particular the Customer must not wilfully or negligently cause damage to the Equipment and will take all reasonable and proper care of the Equipment and keep the same in good condition. The Customer will be responsible for any losses arising as a result of a breach of this clause.

7.3 ICM reserves the right to substitute any of the Equipment with equipment which is compatible and equivalent or superior in functionality.

7.4 The Customer shall be responsible for ensuring the Equipment and any removable magnetic or optical media is cared for and operated in accordance with the manufacturer’s recommendations.

7.5 The Customer undertakes to remove its Software from the Equipment immediately after use.

8.1 ICM shall provide access to and use of the ICM Facility and Equipment in order for the Customer to carry out a Rehearsal during Rehearsal Days as specified in Schedule B.

8.2 All Rehearsals shall be scheduled by mutual agreement and in accordance with ICM’s procedures in effect from time to time.

8.3 All IT-Direct Rehearsals will be conducted at an ICM Facility.

8.4 ICM may cancel or reschedule a Rehearsal in the event that the ICM Facility or the Equipment is required to meet an Invocation by another customer. In such circumstances the Customer agrees to vacate the ICM Facility and (where applicable) allow ICM to access and remove the Equipment at the earliest opportunity and in any event within two hours of notification. In such an event, a new mutually convenient Rehearsal date will be agreed. ICM will charge no extra cost to the Customer for the rescheduled Rehearsal.

8.5 If the Customer wishes to cancel or reschedule any Rehearsal, ICM shall endeavour to accommodate such request. However, in the event that less than 48 hours notice of such cancellation or rescheduling is provided the Rehearsal time detailed within the Schedules shall be reduced by the number of days cancelled and the Customer shall not be entitled to any rebate of the Charges.

9.1 The Customer shall pay the Charges under this Agreement from the Commencement Date of Services as detailed in the Schedules and the Service Modules as varied by agreement between the parties from time to time. The Charges are stated net and therefore shall be subject to the addition of Value Added Tax (VAT) at the appropriate rate or any other tax that Government legislation may apply to this Agreement from time to time.

9.2 If any sum due from the Customer shall not be paid within the payment terms agreed herein, then ICM shall be entitled (in addition to ICM’s other rights and remedies) to suspend the DR Direct Service without adjustment to the Charges until such time as any amounts due shall have been paid. Interest at the rate of 4 per cent above Barclays Bank base lending rate for the time being shall be payable on all sums due under this Agreement and not paid on their due date.

9.4 The Schedules to this Agreement may be modified from time to time provided that such modification is acceptable to both parties for inclusion within this Agreement. For the avoidance of doubt modification of the Schedules within this Agreement shall be deemed to be a variation of this Agreement and shall not be deemed to be the creation of a new agreement. Any variation in the Charges arising shall be invoiced or credited pro rata from the date of such modification up to the date that the next invoice is due. Thereafter the revised Charges shall be consolidated within the main invoice.

10.1 This Agreement will be effective from the Commencement Date of Services and will continue for the Minimum Term, after which the provisions of this Agreement will continue to apply for further 12 month periods until terminated by either party serving not less than 3 calendar months’ notice in writing to the other party to expire on the Anniversary date of the Commencement Date of Services.

10.2 Either party may without prejudice to any other rights terminate this Agreement with immediate effect by notice in writing to the other party if the other party becomes bankrupt, insolvent, or goes into liquidation (other than for the purpose of amalgamation or reconstruction) or makes any composition with its creditors or has a receiver or administrator appointed of the whole or any part of its assets.

11.1 The Customer warrants that at the date of signing this Agreement it is not aware of any existing Disaster which would require the Customer to Invoke the DR Direct Service.

11.2 The Customer will ensure that while this Agreement is in force all Supported Hardware is covered by a maintenance agreement and before Invocation the Customer will use all reasonable endeavours to utilise such maintenance agreement. ICM may from time to time request the Customer supply a copy of the maintenance agreement then in force.

12.1 Save as otherwise provided in clauses 12.2 and 12.3, the total liability of ICM under this Agreement for all claims made for loss or damage suffered, however that liability arises, shall be limited to £100,000.

12.2 ICM shall indemnify the Customer in respect of claims for direct physical injury to, or death, where such is attributable to the negligence of ICM’s employees.

12.3 ICM shall indemnify the Customer in respect of claims for direct physical damage to the Customer’s property at the Site Address (excluding data) arising as a direct result of the negligence of ICM’s employees in the performance of this Agreement. ICM’s liability in this regard shall be limited to £500,000 for any one event or connected events.

12.4 ICM shall not be liable for any indirect or consequential losses arising out of its performance under this Agreement (except as provided for in clause 13.2 herein) including but not limited to pure economic loss, anticipated profits, revenues, anticipated savings, loss of clients, goodwill, business opportunities, wasted overheads, loss or corruption of data, software or configurations wherever held or any other losses not flowing directly and naturally from the performance of this Agreement.

12.5 ICM shall not be liable for any loss resulting from any failure to provide the DR Direct Service if such failure is due to use of the DR Direct Service by another client who has experienced a Disaster and who Invoked before the Customer.

12.6 This clause 12 shall survive any termination of this Agreement

If either party shall be in material default of its obligations under this Agreement then such default may be considered by the other party to be a breach of Agreement. Failure to remedy such breach (where the breach is capable of remedy) which has continued for 30 days after receipt of written notice thereof shall entitle the other party to terminate this Agreement summarily and without prejudice to the other party’s rights and remedies existing at the date of termination. Any outstanding sums due under the Agreement will become immediately payable.

14.1 This Agreement constitutes the entire Agreement between the parties relating to the subject matter contained herein and no statements or representations made by either party or on its behalf and not included herein shall add to or vary the Agreement or be capable of being relied on.

14.2 The terms and conditions of this Agreement shall prevail in the event that there shall be any variance with the terms and conditions of any order submitted by the Customer for the subject of this Agreement.

14.3 The headings to the Clauses in this Agreement are for ease of reference only and should not affect the interpretation or construction of this Agreement.

14.4 If any provision hereof is held to be illegal, invalid or unenforceable for any reason, this shall not affect the validity or enforceability of any other provision of this agreement or this agreement as a whole which shall continue to be of full force and effect

14.5 All written notices required under this Agreement shall be served by recorded postal delivery or timed facsimile transmission to the parties respective addresses detailed in Schedule A.

14.6 Neither party shall be liable for any delays in meeting any of their obligations under this Agreement where such delays are due to causes beyond their reasonable control.

14.7 Neither party shall assign or otherwise transfer this Agreement without the prior written consent of the other party, such consent not to be unreasonably withheld, provided that either party may assign to a member of its same group of companies subject to first providing to the other prior written notice of such intended assignment.

14.8 Both parties hereby agree that it is the intention of neither party to violate any public policy or statutory or common law and that if any sentence paragraph clause or combination thereof is in violation of any national or EC law the same shall not be of effect but shall be divisible from the remainder of this Agreement which shall remain binding on the parties.

14.9 Any delay, neglect or forbearance in enforcing any term or condition in this Agreement shall not be deemed a waiver contractual rights.

14.10 No term of this Agreement may be enforced by any person who is not a party to this Agreement and the Contracts (Rights of Third Parties) Act 1999 is excluded to the fullest extent permitted by law.

14.11 This Agreement shall be governed by the Laws of England and the parties hereto agree to submit to the exclusive jurisdiction of the English Law Courts.