Framework Agreement
The following Terms and Conditions in this Framework Agreement shall apply to all Services and Equipment provided by S2S to you (“the CUSTOMER”) (each of us a “party” and “parties” shall be construed accordingly). In entering into a Contract (as defined below) the CUSTOMER hereby agrees to be bound by the following Terms and Conditions and acknowledges that these Terms and Conditions shall take precedence over any Terms and Conditions set out in any CUSTOMER purchase order (or, subject to Clause 32, any other document).
1. Interpretation
1.1 In these Terms and Conditions, the words and expressions set out below shall have the following meanings:
“Account Manager” means the account manager at S2S looking after the CUSTOMER or in the event that the Account Manager is unavailable, any other member of the S2S management or sales team;
“Acceptance Tests” means the tests agreed between the parties and documented in a Work Order to verify Professional Services;
“Business Day” means the hours between 0900 and 1730 during any day other than a Saturday, a Sunday or a public holiday in England and Wales;
“Charges” means the charges for the Managed Services as set out in a SureFire Contract;
“Confidential Information” means all information which is imparted or obtained under or in connection with the Framework Agreement or a Contract on, before or after the Framework Agreement Date in confidence (whether in writing, verbally or by other means and whether directly or indirectly) or is of a confidential nature, relating to the business or prospective business, current or projected plans or internal affairs of either of the parties, including in particular, but not limited to, the terms of the Framework Agreement or any Contract, all know-how, trade secrets, products, operations, processes, product information and unpublished information relating to either party’s Intellectual Property Rights, and any other commercial, financial or technical information relating to the business or prospective business of either of the parties;
“Consultant(s)” means S2S’s agents or subcontractors;
“Contract” means a Work Order or a SureFire Contract;
“Credit Application Form” means the document signed by CUSTOMER accepting these Terms and Conditions and entering into the Framework Agreement;
“Data” means all data and information received or processed by S2S from or on behalf of CUSTOMER in connection with the performance of a Contract;
“Data Protection Laws” has the meaning set out in Clause 10;
“Date of Contract” means the date a Contract is entered into by the parties;
“Delivery Date” means the date upon which S2S intends to make delivery of the Equipment as set out in a Work Order;
“Employees” means the employees of S2S;
“Equipment” means the items to be delivered by S2S to the CUSTOMER as specified in a Work Order;
“Framework Agreement” means the framework agreement which incorporates these Terms and Conditions which is entered into between S2S and CUSTOMER and evidenced by the CUSTOMER signing the Credit Application Form;
“Intellectual Property Rights” means any current and future intellectual property rights, including:
(a) copyrights, trade marks, trade names, domain names, rights in logos and get-up, inventions, confidential information, trade secrets and know-how including commercial know-how, design rights, patents, utility models, semi-conductor topographies, all rights of whatsoever nature in computer software and data, rights in databases, privacy rights; and
(b) all intangible rights and privileges of a nature similar, analogous or allied to any of the above in every case in any part of the world and whether or not registered, including in relation to the above: all granted registrations and all applications for registration; all renewals, reversions or extensions; all forms of protection of a similar nature which may subsist anywhere in the world;
“Framework Agreement Date” means the date of the Framework Agreement;
“Location” means the CUSTOMER’s premises as specified in the Contract, S2S’s written quotation or the CUSTOMER’s purchase order (as applicable);
“Managed Services” means the managed services to be provided by S2S to the CUSTOMER as specified in a SureFire Contract;
“SureFire Contract” means a document constituting a contract between S2S and the CUSTOMER (incorporating these Terms and Conditions) setting out the details of Managed Services to be provided by S2S to the CUSTOMER;
“Price” means the price for the Equipment (or part thereof, as the case may be) or Professional Services which is specified in the relevant Work Order and, in the event there is no Work Order applicable, the standard S2S prices in force from time to time;
“Professional Services” means the professional services to be provided by S2S to the CUSTOMER as set out in a Work Order;
“Project” means any activities as defined in a Contract;
“Protected Data” has the meaning set out in Clause 10;
“Services” means Professional Services and/or Managed Services (as appropriate);
“Service Credits” means service credits set out in a SureFire Contract which are payable by S2S to the CUSTOMER if the Managed Services fail to meet the Service Levels;
“Service Level Agreement” means a service level agreement (if any) appended to a SureFire Contract which specifies the Service Levels;
“Service Levels” means the level of performance to be attained in respect of the provision of Managed Services as set out under a Service Level Agreement;
“Term” means the period agreed with the customer starting on the Commencement Date and specified in the Surefire Contract.
“VAT” means value added tax as provided for in the Value Added Tax Act 1994 and any similar replacement or additional tax;
“Work Order” means a document constituting a contract between S2S and the CUSTOMER (incorporating these Terms and Conditions) setting out the details of Professional Services and/or Equipment to be provided by S2S to the CUSTOMER.
1.2 In these Terms and Conditions:
(a) any act or regulation, will be construed as referring also to any amendment or re-enactment of such act or regulation (whether before or after the date of the Framework Agreement);
(b) references to any party will, where relevant, be deemed to be references to or include, as appropriate, their lawful successors, assigns and transferees,
(c) use of the singular is deemed to include the plural;
(d) the headings will not affect interpretation;
(e) references to a “month” are to a calendar month, unless otherwise stated; and
(f) reference to a Clause, unless the context otherwise requires, is a reference to a clause of these Terms and Conditions.
2. Overview
2.1 The CUSTOMER agrees that prior to any Services being carried out or any Equipment being supplied to the CUSTOMER by S2S a Contract in respect of the same will be signed by the CUSTOMER. All Services and/or Equipment shall be provided to the CUSTOMER in accordance with a Contract and for the avoidance of doubt shall be governed by these Terms and Conditions.
2.2 Equipment and/or Professional Services may be provided by S2S to the CUSTOMER under a Work Order.
2.3 Managed Services may be provided by S2S to CUSTOMER under a SureFire Contract.
2.4 Except where a Contract has been entered into, S2S shall be under no obligation to supply and the CUSTOMER shall be under no obligation to purchase any Services or Equipment under the terms of the Framework Agreement.
2.5 If S2S shall undertake any work or provide any equipment at CUSTOMER’s request which is not the subject of a Contract then, unless the parties otherwise agree in writing, the provisions of these Terms and Conditions shall apply to such work (so far as the same are capable of applying) and if no fee is agreed for such work S2S shall be paid on a quantum meruit basis and the Price applicable to any such Equipment shall be in accordance with S2S’s standard price list current from time to time.
3. Cancellation or Postponement
3.1 Save as set out below, once any Contract has been signed by both parties it may only be terminated in accordance with Clause 22 of these Terms and Conditions. If the CUSTOMER wishes to cancel or postpone the commencement of the provision of Services or delivery of Equipment for any reason other than those set out in Clause 22, unless otherwise agreed in the relevant Contract, the following shall apply:
3.1.1 Equipment: the CUSTOMER may not cancel or postpone the delivery of all or any Equipment without the prior written consent of S2S. In the event that S2S permits the CUSTOMER to cancel or postpone such a delivery pursuant to this Clause, the CUSTOMER shall indemnify S2S in respect of all loss and damage suffered by S2S as a result of such cancellation or postponement.
3.1.2 Professional Services: in the event that the CUSTOMER wishes to cancel or postpone the commencement of the provision of Professional Services under the relevant Work Order:
(i) more than one (1) week before the commencement of the provision of Professional Services under the relevant Work Order, the CUSTOMER shall pay to S2S an amount equal to the administrative expenses that S2S has incurred in connection with the cancellation or postponement (as the case may be) of the Professional Services; or
(ii) less than one (1) week before the commencement of the provision of Professional Services under the relevant Work Order, the CUSTOMER shall pay to S2S the full amount of the costs and lost revenue incurred by S2S whilst it re-allocates Employees or Consultants who would otherwise have been engaged in the cancelled or postponed Professional Services. The CUSTOMER hereby acknowledges that such cancellation or postponement payment (as the case may be) is made to cover the cost of S2S resource which cannot be re-allocated to a new project at such short notice and does not constitute a penalty.
3.1.3 Managed Services: the CUSTOMER may not cancel or postpone the commencement of all or any Managed Services without the prior written consent of S2S. In the event that S2S permits the CUSTOMER to cancel or postpone Managed Services pursuant to this Clause, the CUSTOMER shall indemnify S2S in respect of all loss and damage suffered by S2S as a result of such cancellation or postponement.
4. Provision of the Services
4.1 S2S shall:
(a) provide the Services in accordance with the provisions of these Terms and Conditions and the Contract;
(b) implement and maintain appropriate security procedures to prevent the unauthorised disclosure, destruction, damage, loss or alteration of Data;
(c) be responsible for complying with any applicable laws, statutes, regulations and codes of practice, relating to the provision of the Services;
(d) comply with all reasonable and lawful policies and procedures of the CUSTOMER which have been notified with reasonable notice in writing to S2S.
4.2 At the end of each Business Day prior to Employee(s) or Consultant(s) leaving the CUSTOMER’s premises the CUSTOMER shall sign-off for the work carried out during that Business Day on a technical sign-off form provided by S2S (“Technical Sign Off Form”). In the absence of an authorised representative of the CUSTOMER, the CUSTOMER agrees that S2S’s sign-off for the work carried out has the equivalent value as if the CUSTOMER has been available.
4.3 In addition to its obligations set out elsewhere in these Terms and Conditions the CUSTOMER shall:
(a) upon request of S2S, make available to S2S such office and technology facilities as may be necessary for S2S to perform any Services under these Terms and Conditions;
(b) ensure that its employees and any sub-contractors and other independent contractors co-operate fully with S2S in relation to the provision of the Services and that such employees and any such sub-contractors will be qualified to carry out any tasks which they may be assigned in relation to any Project;
(c) promptly furnish S2S with such information and documents as S2S may reasonably require for the proper performance of the Services under these Terms and Conditions and be responsible for ensuring that such information is true, accurate, complete and not misleading in any material respect;
(d) obtain all third party consents, licenses and rights reasonably required in order to allow S2S to perform the Services and be responsible for complying with any applicable laws, statutes, regulations and codes of practice, relating to the CUSTOMER in connection with the Services and all of its other obligations under these Terms and Conditions; and
(e) put in place adequate security and virus checking procedures in relation to any computer facilities to which it provides S2S with access.
4.4 Should the CUSTOMER fail to perform any of its obligations under these Terms and Conditions or fail to provide data and/or information required by S2S in order for S2S to provide the Services or Equipment, or should the CUSTOMER provide S2S with data and/or information which is inaccurate and/or incomplete, then S2S will not be responsible for any delay, cost increase or other consequences arising from such failure. In the event that any failure to perform on the part of the CUSTOMER in accordance with this Clause 4.4 causes S2S to suffer any loss and/or damage or incur additional expense, the CUSTOMER shall reimburse S2S in full in respect of the same. Any further additional costs or expenses will be agreed between the parties.
5. Service Levels
5.1 S2S shall perform Managed Services in accordance with the Service Level Agreement (if any) set out in the relevant SureFire Contract.
5.2 If S2S fails to meet the Service Levels, Service Credits may apply if such regime is agreed as part of the SureFire Contract. Service Credits are only valid to the extent that S2S issues a credit note that will be applied to the next valid invoice in accordance with Clause 15. Service Credits are the only remedy available to the CUSTOMER for breach of Service Levels.
5.3 S2S shall not be liable for any failure to achieve the required Service Levels and Service Credits shall not arise to the extent that such failure results from:
(a) a breach by the CUSTOMER of any of its obligations under these Terms and Conditions;
(b) a failure attributable solely to the use of public telecommunications links between S2S and the CUSTOMER; or
(c) an event of Force Majeure falling within the scope of Clause 26.
5.4 Without prejudice to any other right or remedy of the CUSTOMER under these Terms and Conditions, if S2S fails to meet any of the Service Level commitments or fails to meet any of its obligations under these Terms and Conditions, S2S will use reasonable endeavours to remedy such failures, which will include:
(a) investigating the cause of the failure or problem and discussing investigation results with the CUSTOMER;
(b) finding a solution to such failures that is acceptable to the CUSTOMER; and
(c) advising the CUSTOMER of the status of all remedial efforts.
5.5 In the event that the failure to achieve the required Service Levels is only partially the result of any matter falling within Clause 5.3 the actual performance of S2S in relation to the required Service Levels shall be adjusted to such levels as the parties agree would have been achieved, but for the impact of such matters. In the event that the parties are unable to agree upon the appropriate adjustment, the matter shall be referred to an expert for determination pursuant to Clause 35.
6. Delivery of Equipment or Professional Services
6.1 S2S shall deliver the Equipment (if any) and/or Professional Services to the Location.
6.2 Whilst S2S shall endeavour to deliver the Equipment and/or Professional Services to the CUSTOMER on the Delivery Date CUSTOMER hereby acknowledges that such Delivery Date is only an approximate date and the time of delivery of the Equipment and/or Professional Services shall not be of the essence and S2S will not accept any liability if any Delivery Date is not met. Failure by S2S to deliver on the Delivery Date stated shall not be sufficient cause for the CUSTOMER to terminate this Contract.
6.3 In circumstances where S2S has agreed to deliver the Equipment to the CUSTOMER in instalments, any delay in delivering one or more of such instalments shall not entitle the CUSTOMER to refuse to accept any remaining instalments.
6.4 CUSTOMER shall not refuse to accept delivery of any Equipment due to any shortage or defect in any other delivery.
7. Shortages, Damaged Equipment, Non-Delivery and Return of Equipment
7.1 Subject to Clause 7.2 below, if the Equipment or any part thereof is damaged or missing upon delivery to the CUSTOMER, S2S will, at its sole option, either replace such Equipment or such part thereof or refund the CUSTOMER the Price in respect of the same. Such replacement or refund shall be S2S’s sole liability to the CUSTOMER in such respect.
7.2 In no circumstances shall S2S be liable to the CUSTOMER to replace or refund the CUSTOMER in accordance with Clause 7.1 above:
(a) in respect of any shortages or damaged Equipment unless the Equipment is inspected by the CUSTOMER on arrival in the presence of the carrier, the Employee or Consultant (as applicable). If on such inspection any Equipment is shown to be damaged or missing the consignment note must be endorsed by the CUSTOMER accordingly and the CUSTOMER shall notify S2S in writing of any such damage or missing Equipment, attaching a copy of the endorsed consignment note, within 48 hours of such delivery.
(b) in respect of the non-delivery of a whole consignment of the Equipment unless the CUSTOMER informs S2S in writing in respect of the same within ten (10) days of the date of the invoice received by the CUSTOMER in respect of such non-delivered Equipment.
7.3 In the absence of the receipt by S2S of any written notification from the CUSTOMER in accordance with Clause 7.2 above, the CUSTOMER shall be deemed to have accepted the Equipment.
7.4 The CUSTOMER shall not be entitled to return the Equipment or any part thereof to S2S for credit unless previously confirmed by S2S to the CUSTOMER in writing.
8. S2S Warranties
8.1 In respect of the Services S2S warrants to CUSTOMER that:
(a) the Services will be performed in a timely and professional manner and in accordance with standards generally observed in the industry for similar services and will be provided using reasonable skill and care;
(b) any person used by S2S to perform any part of the Services will be suitably qualified and skilled to perform the Services;
(c) the provision of the Services and any work produced by S2S as a result of the provision of the Services and provided to or used by or on behalf of the CUSTOMER under these Terms and Conditions will not infringe the Intellectual Property Rights or any other rights of any third party;
(d) it has the power to enter into and to execute, deliver and perform the obligations contained in these Terms and Conditions; and
(e) save in respect of software for which no specific license is required, it is the legal and beneficial owner and/or rightful licensee (as appropriate) of all Intellectual Property Rights in all software provided to the CUSTOMER pursuant to these Terms and Conditions.
8.2 Any Equipment will be subject to the manufacturer’s warranty, details of which will be included by the manufacturer along with the operating manual with the Equipment. The CUSTOMER may obtain further warranty cover by purchasing an extended warranty and/or an advanced product replacement guarantee where available from the manufacturer of the Equipment. The CUSTOMER will be responsible for ascertaining the terms of such guarantee and/or warranty and ensuring that any conditions in respect of the same are complied with in full.
8.3 S2S may provide assistance to the CUSTOMER in dealings with the manufacturer in this respect, but accepts no liability in respect of any defect or breakdown of Equipment.
8.4 S2S gives no warranties with respect to Further Services (as defined in Clause 13.1).
9. CUSTOMER’s Warranties
The CUSTOMER warrants to S2S:
(a) that the necessary use of any of the CUSTOMER’s software and/or hardware by S2S to enable S2S to perform the relevant Services under any Contract will not infringe the Intellectual Property Rights or any other rights of any third party; and
(b) that it has the power to enter into and to execute, deliver and perform the obligations contained in these Terms and Conditions.
10. Data Protection
10.1 In this Clause 10, the terms “personal data”, “data”, “data subject” and “processing” shall have the meanings ascribed to them in the Data Protection Act 1998.
10.2 Each party shall comply with any data protection, privacy or similar laws anywhere in the world (“Data Protection Laws”), including, the Data Protection Act 1998, that apply in relation to any personal data processed in connection with any Services and/or Equipment provided by S2S to the CUSTOMER under this Framework Agreement and any Contract (“Protected Data”), and render such assistance and co-operation as is reasonably necessary or reasonably requested by the other party.
10.3 Without prejudice to the generality of Clause 10, in respect of Protected Data disclosed to S2S (if any) (and whether disclosed by the CUSTOMER, data subjects or otherwise), S2S shall ensure that it only processes such Protected Data for purposes notified to it by the CUSTOMER and/or the relevant data subjects.
10.4 S2S will take all steps required and communicated in writing to S2S by the CUSTOMER that CUSTOMER reasonably considers are necessary in order to comply with the CUSTOMER’s own obligations under Data Protection Laws.
11. Acceptance of Professional Services
11.1 Where a Work Order states that the Professional Services are to be subject to Acceptance Tests, the following shall apply.
11.2 Acceptance Tests will be deemed passed where the Acceptance Tests provide the expected results as specified in the Work Order (“the Expected Results”).
11.3 S2S will advise the CUSTOMER of the date it will run the Acceptance Tests (“the Testing Date”). S2S shall give the CUSTOMER at least twenty-four (24) hours' notice of the Testing Date and permit the CUSTOMER to observe all or any part of such tests. The CUSTOMER shall provide all the necessary facilities and access to enable the Acceptance Tests to be properly carried out on the Testing Date. The Acceptance Tests and Expected Results will not be prejudiced and will be valid whether or not the CUSTOMER chooses to attend the Acceptance Tests on the Testing Date.
11.4 If the Expected Results are not obtained in the Acceptance Tests, S2S shall, within seven (7) days from the completion of the Acceptance Tests, provide a written notice to the CUSTOMER to this effect, giving details of such failure(s). S2S shall remedy the defects and/or deficiencies and the Acceptance Tests shall be repeated within a reasonable time.
11.5 Acceptance of the Professional Services shall be deemed to have occurred on whichever is the earliest of:
(a) the signing by the CUSTOMER of an acceptance certificate for the Acceptance Tests; or
(b) the obtaining of the expected results specified in the Work Order; or
(c) the expiry of seven (7) days after the completion of all the Acceptance Tests, unless the CUSTOMER has given any written notice under Clause 11.4; or
(d) the use of the whole or part of the system which is the subject of the Professional Services by the CUSTOMER in the course of its business; or
(e) seven (7) days after the Testing Date where S2S is ready to commence running the Acceptance Tests or repeat Acceptance Tests but the CUSTOMER unreasonably delays the start of the Acceptance Tests or any repeats of the Acceptance Tests for seven days or more after the Testing Date.
11.6 The Acceptance Tests shall not be deemed to have failed to the extent that they have failed to provide any result, facility or function not specified in the Work Order.
11.7 Where failure is caused by an act or omission of the CUSTOMER, or by one of the CUSTOMER’s sub-contractors or agents for whom S2S has no responsibility (Non-Supplier Defect), the Professional Services shall be deemed to have passed the Acceptance Tests notwithstanding such Non-Supplier Defect. S2S shall provide assistance reasonably requested by the CUSTOMER in remedying any Non-Supplier Defect by supplying additional services or products. The CUSTOMER shall pay S2S in full for all such additional services and products at S2S’s then current fees and prices.
12. Supervision and Change Control
12.1 The CUSTOMER shall appoint a representative who shall have full authority to take all necessary decisions on behalf of the Customer regarding a Project.
12.2 S2S and the CUSTOMER’s representative shall meet at regular intervals during the continuance of each Project to discuss the progress of the same.
12.3 In the event that any change to the nature or scope of the Services being performed under any Contract is identified as being desirable by either S2S or the CUSTOMER, a request may be submitted to the other party to effect such change. Any such request shall be sufficiently detailed to enable the other party to assess the impact of the proposed change. No such change will become effective until agreed in writing between the parties.
13. Further Services
13.1 In the event that the CUSTOMER should seek urgent services from Employees or Consultants who are already on site at a Location and which are in addition to those Services specified in the relevant Contract (Further Services) the Customer shall either:
13.1.1 during a Business Day, contact the Account Manager to request the Further Services and the Account Manager shall use reasonable endeavours to agree with the Customer how and on what terms the Further Services may be provided. Any such Further Services which S2S agrees to provide will be subject to these Terms and Conditions; or
13.1.2 outside a Business Day, contact the senior Employee or Consultant at a Location (if any) who shall use reasonable endeavours to arrange for the undertaking of the Further Services. Where such Employee or Consultant agrees to arrange the undertaking of the Further Services the Customer shall sign a Technical Sign-Off Form to confirm the terms of such Further Services. Such Further Services will be charged to the Customer at standard S2S overtime rates then in place.
13.2 S2S shall be under no obligation to provide Further Services.
14. Intellectual Property Rights
14.1 In respect of any Intellectual Property Rights owned by a party as at the Date of Contract, that party shall continue to own such Intellectual Property Rights. The Framework Agreement shall not assign or transfer any Intellectual Property Rights to either party.
15. Charges, Price and Payment
15.1 In consideration of the Services and/or Equipment rendered by S2S to the CUSTOMER pursuant to each Contract, the CUSTOMER will pay S2S the Charges and Prices as set out in the relevant Contract in accordance with the following clauses. The Charges and/or Price set out in each Contract is exclusive of any applicable VAT and all other local taxes in the relevant local jurisdiction that shall additionally be paid by CUSTOMER.
15.2 Unless otherwise agreed, the following shall apply:
(a) in a SureFire Contract:
(i) Charges shall accrue monthly and S2S shall render monthly invoices to the CUSTOMER in respect of the same;
(ii) where the CUSTOMER has applied for and been granted a credit facility by S2S, all Charges payable by the CUSTOMER shall be paid to S2S within thirty (30) days of the date of the invoice in respect of the same. Where the CUSTOMER has not been granted a credit facility by S2S, the CUSTOMER shall pay monthly in advance or within seven (7) days of the date of the invoice in respect of the same at the sole discretion of S2S.
(b) in a Work Order:
(i) the CUSTOMER shall pay S2S the Price and any other charges due in respect of the Equipment or Professional Services in advance of delivery of the same unless the CUSTOMER has applied for and been granted a credit facility by S2S in which case the CUSTOMER shall pay S2S the Price within thirty (30) days of the invoice date in respect of the same.
(ii) Prices invoiced for Equipment will be charged by S2S to the CUSTOMER in accordance with the current price list of S2S in force at the date of dispatch of the relevant Equipment. The Price shall include the cost of standard packaging and carriage within the United Kingdom at normal goods rates unless otherwise agreed between the CUSTOMER and S2S in writing. The CUSTOMER shall pay S2S an amount in addition to the Price in respect of any special packaging or carriage arrangements required.
15.3 In the event of non-payment of any sum due to S2S by the CUSTOMER in accordance with these Terms and Conditions by the due date in respect of the same, all monies owing (whether due or not) by the CUSTOMER to S2S shall become due and payable and S2S may, without prejudice to any of its rights under these conditions, withdraw any discounts and S2S reserves the right to charge interest on the aggregate of such sum then outstanding at the rate of four per cent (4%) per annum above the Base Rate of HSBC Bank PLC or the prevailing rate pursuant to statute (whichever is the greater) from time to time, such interest to accrue on a daily basis from the date or last date for payment of the same to the date of actual payment (both dates inclusive) after as well as before any judgment. Such interest shall be paid by the CUSTOMER on demand by S2S.
15.4 Nothing in these Terms and Conditions shall entitle the CUSTOMER to withhold or delay any payment due to S2S after the date upon which it falls due or in any way prejudice or affect S2S’s rights in relation to this non-payment.
15.5 If payment is not made by the CUSTOMER to S2S by the due date in respect of such payment S2S reserves the right without prejudice to any other remedy which it may have either under these Terms and Conditions or in law, to either cancel the Framework Agreement, any Contract or any other agreement between the CUSTOMER and S2S and/or cease or suspend delivery of the Services and/or Equipment until payment in respect of the same shall have been received by S2S in full.
15.6 All payments must be made to S2S by the CUSTOMER in full without deduction or set-off of any kind. Complaints by the CUSTOMER in respect of any Services and/or Equipment alleged to be defective shall not constitute a ground for the CUSTOMER to withhold payments in respect of the same and shall not give rise to any right of set-off against payments due from the CUSTOMER to S2S.
16. Retention of Title and Risk
16.1 Title in any Equipment provided by S2S to the CUSTOMER under this Framework Agreement shall not pass to the CUSTOMER until the CUSTOMER has paid the Price and any additional charges in respect of such Equipment in full. The CUSTOMER acknowledges that it is in possession of the Equipment solely as bailee for S2S until such time as the Price and any additional charges are paid by the CUSTOMER to S2S in respect of such Equipment.
16.2 Until such time as title in the Equipment passes to the CUSTOMER in accordance with this Clause, the CUSTOMER hereby agrees to store and label the Equipment on its premises separately from its own equipment or the equipment of any third party kept on site at the CUSTOMER’S premises in a manner which makes them readily identifiable as the Equipment belonging to S2S pursuant to this Contract.
16.3 The CUSTOMER shall not remove the Equipment or any part of it, from the Location where it has been delivered by S2S for any purpose whatsoever until such time as the CUSTOMER has paid the Price to S2S in respect of the same in full.
16.4 The CUSTOMER’s right to possession of the Equipment shall cease if it does anything which would entitle a receiver to take possession of any assets of the CUSTOMER or which would entitle a receiver to take possession of any such assets or which would entitle any person to present a petition for winding up. In such circumstances the CUSTOMER hereby irrevocably licenses S2S to enter onto the CUSTOMER’s premises or any other premises where the Equipment is stored or upon any premises where S2S reasonably believes such Equipment to be stored, for the purpose of recovery of its Equipment and S2S may repossess the same.
16.5 Risk in any Equipment provided by S2S to the CUSTOMER under a Contract shall pass to the CUSTOMER as soon as such Equipment is delivered to the CUSTOMER’s premises and accordingly the CUSTOMER shall be responsible for insuring such Equipment against all normal risks with effect from the time risk passes.
17. CUSTOMER’s Obligations
17.1 The CUSTOMER undertakes to S2S to provide S2S promptly with any information which S2S may reasonably require from time to time to enable S2S to proceed with the performance of a Contract without undue delay or impediment.
17.2 If S2S is prevented or delayed from performing its obligations under a contract by reason of any act or omission of the CUSTOMER (other than a delay by the CUSTOMER for which the CUSTOMER is excused under Clause 26) then the CUSTOMER will pay to S2S all reasonable costs, charges and losses sustained or incurred by S2S as a result (including without limitation the cost of storage and insurance of the Equipment), subject always to the limits on liability in Clause 18, and S2S shall promptly notify the CUSTOMER in writing of any claim which it may have under this Clause giving such particulars thereof as it is then able to provide.
17.3 The CUSTOMER shall not change, remove or obscure any labels, plates, insignia, lettering or other markings which are on the Equipment at the time that such Equipment is delivered.
17.4 Should the CUSTOMER wish to export any Equipment following purchase from S2S, the CUSTOMER agrees to comply with all applicable laws and regulations.
18. Indemnities and Liability
18.1 S2S shall indemnify the CUSTOMER and keep the CUSTOMER fully and effectively indemnified on demand against any injury to or death of any person caused by any negligent act or omission or breach of a Contract by S2S.
18.2 The CUSTOMER shall indemnify S2S and keep S2S fully and effectively indemnified on demand against any loss of or damage to any property or injury to or death of any person caused by any negligent act or omission or breach of this Contract by the CUSTOMER, its employees, agents or sub-contractors.
18.3 Except in respect of injury to or death of any person or any other liability which cannot be limited or excluded by law (for which no limit applies), the liability of either party under a the Framework Agreement and all Contracts in aggregate shall not exceed £1,000,000.
18.4 Notwithstanding Clause 18.3, for each Contract, the maximum liability of S2S to the Customer, whether in contract, negligence or other torts or otherwise arising out of or in connection with a Contract, will not under any circumstance exceed all Charges or Prices actually paid by the CUSTOMER to S2S under the relevant Contract to which the liability relates.
18.5 Notwithstanding anything else contained in these Terms and Conditions S2S shall not be liable to the CUSTOMER for any loss of data, profit, goodwill or business opportunity or contracts, or other special, indirect or consequential loss whether arising from negligence, breach of contract or howsoever caused.
18.6 S2S shall not be liable to the CUSTOMER for any loss arising out of (and to the extent caused by) any failure by the CUSTOMER to keep full and up-to-date security copies of the computer programs and data it uses in accordance with best computing practice.
18.7 S2S does not give any warranty that the Equipment is fit for any particular purpose. S2S only warrant that Equipment is fit for a particular purpose where that purpose is explicitly set out in the relevant Work Order.
18.8 The express terms of Clause 8 are in lieu of all warranties, conditions, terms, undertakings and obligations implied by statute, common law, custom, trade usage, course of dealing or otherwise, all of which in relation to the Services, Equipment and Further Services are hereby excluded to the fullest extent permitted by law.
18.9 For the avoidance of doubt, so far as permitted by law, S2S accepts no liability to the Customer for any loss or damage the Customer suffers in connection with Further Services.
19. Confidentiality
19.1 Each party undertakes to the other that it will keep secret and will not without the prior written consent of that other party disclose to any third party except for a party’s legal and professional advisors any Confidential Information learned by the recipient party or disclosed to the recipient party by another party pursuant to or otherwise in connection with this Framework Agreement or any Contract, except where any Confidential Information:
(a) comes into the public domain otherwise than through unauthorised disclosure by either party;
(b) is already known to the recipient party;
(c) is independently developed by the recipient party;
(d) is lawfully acquired from a third party who owes no duty of confidence to the disclosing party; or
(e) is required by any court of competent jurisdiction or by a governmental or regulatory authority to be disclosed or where there is a legal right, duty or requirement to disclose, provided that where possible and without breaching any such requirements two (2) days notice are given to the disclosing party of any such disclosure.
19.2 To the extent that it is necessary to implement the provisions of these Terms and Conditions the recipient party may disclose Confidential Information to its employees and/or sub-contractors as may reasonably be necessary provided that the recipient party will:
(a) before disclosure, make such employees and/or sub-contractors aware of their obligations of confidentiality under these Terms and Conditions;
(b) at all times take all reasonable steps to procure compliance with such obligations of confidentiality; and
(c) if requested by the disclosing party, procure named employees to execute a confidentiality agreement directly in favour of the disclosing party.
19.3 The provisions of this Clause shall survive the termination of a Contract.
20. Personnel
20.1 The CUSTOMER shall have the right to request that S2S replaces any person assigned by S2S to perform the Services if the CUSTOMER reasonably considers the performance of that person unacceptable.
20.2 The CUSTOMER shall not without the prior written consent of S2S (and so that each of sub-clauses (a) and (b) below shall be deemed to constitute a separate agreement and shall be construed independently of the other):
(a) at any time during the term of a Contract to the expiry of twelve months after the date of termination or expiration of the same (as the case may be) solicit or endeavour to entice away from or discourage from being employed by S2S any person who is, or shall at any time between the Date of Contract and the date of such termination or expiration of the Contract an Employee.
(b) at any time during the term of a Contract to the expiry of twelve months after the date of termination or expiration of the same (as the case may be) employ or attempt to employ any person who is, or shall at any time between the Date of Contract and the date of such termination or expiration of a Contract be an Employee.
21. Term
A Contract for Services shall take effect as of the Date of Contract and shall continue until completion of the Services (in accordance with the Contract) or termination in accordance with Clause 22 below.
22. Termination
22.1 Either party may terminate a Contract by written notice to the other with immediate effect:
(a) in the event that the other party has a receiver or administrative receiver appointed over it or any part of its undertaking or assets or shall pass a resolution for winding up (except for the purpose of a bona fide scheme of solvent amalgamation or reconstruction) or a court of competent jurisdiction shall make an order to that effect or if that other party shall enter into any voluntary arrangement with its creditors or shall become subject to an administration order or shall cease to carry on business, or anything analogous in any jurisdiction in which that other party is located;
(b) if the other party is in material breach of these Terms and Conditions and the breach is not capable of remedy;
(c) if the other party is in material breach of these Terms and Conditions and the breach is capable of remedy and the breaching party shall have failed to remedy the breach within thirty (30) days of written notice from non-breaching party specifying the breach and requiring its remedy.
23. Consequences of Termination
23.1 Upon termination or expiry of a Contract:
(a) all rights and obligations of the parties under that Contract shall automatically terminate except for such rights of action as shall have accrued prior to such termination and any obligations which expressly or by implication are intended to come into or continue in force on or after such termination including, in particular the provisions of Clause 19 of these Terms and Conditions.
(b) the CUSTOMER shall pay S2S for all unpaid Prices and Charges, a reasonable amount for work carried out and any reimbursable expenses accrued up to the date of termination;
(c) S2S shall cease accessing the CUSTOMER’s systems and return to the CUSTOMER or the CUSTOMER’s new supplier, without taking or retaining any electronic or other copies, any hardware and/or software supplied to S2S by the CUSTOMER to enable S2S to access the CUSTOMER’s system in order to provide the Services;
(d) both parties shall return or destroy (at the other’s option) and without taking copies, all information, analyses, compilations, notes, slides, memoranda or other documents prepared by or for that party or any of that party’s professional advisers to the extent that such items derive from or contain Confidential Information of the other party;
(e) S2S agrees to give all reasonable assistance to enable the seamless transition of any of the Services then ongoing or otherwise to an alternative third party service provider as notified to S2S by the CUSTOMER. S2S shall be responsible for the cost of providing such transitional services if the Contract is terminated as the result of S2S’s failure to perform the Services or if S2S is in breach of the Agreement. In all other circumstances the CUSTOMER shall pay S2S for the provision of such a transition service on a time and materials basis at S2S’s then standard rates.
23.2 For the avoidance of doubt, in accordance with Clause 16.4, any termination under Clause 22.1 shall entitle S2S to enter any of the CUSTOMER’s premises and recover any Equipment and materials which remain the property of S2S.
24. Sub Contracting
S2S shall be entitled to appoint Consultants to provide Services without the prior written consent of the CUSTOMER. Any use of Consultants by S2S will not relieve or discharge S2S from any of its obligations or responsibilities under these Terms and Conditions.
25. Assignment
25.1 The CUSTOMER will not assign, transfer, charge or otherwise deal with its rights or obligations under these Terms and Conditions or any Contract, or attempt to do any of the above without the prior written consent of S2S.
25.2 S2S may at any time assign, transfer, charge or otherwise deal with its rights or obligations under these Terms and Conditions or any Contract.
26. Force Majeure
26.1 For the purposes of the Framework Agreement and all Contracts under it, the expression "Force Majeure" shall mean an event which is beyond the control of an affected party including (without limitation) any Act of God, explosion, fire, flood, war, hostilities, accident, delay in delivery or non-delivery by suppliers of the delaying party, breakdowns or accidents to machinery, labour strikes or dispute, order or decree of any court or action of any governmental authority, or any other causes or any circumstances whatsoever beyond the control of the delaying party, (including without limitation any delay caused by any act or omission of the other party) and which such party could not anticipate or mitigate by means of insurance, contingency planning or any other prudent business means. Any event will only be considered Force Majeure if it is not attributable to the wilful act, neglect, default or other failure to take reasonable precautions of the affected party, its agents, employees or contractors.
26.2 Except for the CUSTOMER’s obligation to pay the Charges or Prices under the Contract, subject to the delaying party promptly notifying the other party in writing of the Force Majeure (and the likely duration of the delay), the performance of the delaying party’s obligations shall be suspended during the period that the said circumstances persist and such party shall be granted an extension of time for performance equal to the period of the delay. Save where such delay is caused by the act or omission of the other party (in which event the rights, remedies and liabilities of the parties shall be those conferred and imposed by the other provisions of these Terms and Conditions and by law):
(a) any costs arising from such delay shall be borne by the party incurring the same;
(b) either party may, if such delay continues for more than three (3) months, terminate the relevant Contract forthwith on giving notice in writing to the other in which event neither party shall be liable to the other by reason of such termination, save that the CUSTOMER shall pay S2S in full in respect of any Services already provided and/or work carried out by it prior to such termination and for that purpose S2S may deduct such sum from any amounts previously paid to S2S in advance by the CUSTOMER under these Terms and Conditions and the balance (if any) shall be refunded to the CUSTOMER whether paid by way of a deposit or otherwise);
(c) both parties will in any event use all reasonable commercial endeavours to mitigate the impact of any event of Force Majeure and to recommence performance of their obligations under these Terms and Conditions as soon as reasonably possible.
(d) save as set out above, no party shall in any circumstances be liable to the other for any loss of any kind whatsoever, including, but not limited to, any damages, whether directly or indirectly caused to or incurred by the other party by reason of any failure or delay in the performance of its obligations hereunder which is due to Force Majeure.
27. Non-Waiver
27.1 Any failure or delay in enforcing an obligation or exercising a right, under these Terms and Conditions, does not amount to a waiver of that obligation or right.
27.2 The waiver of a breach of a term of these Terms and Conditions does not amount to a waiver of any other term.
28. No Partnership
S2S is an independent contractor of the CUSTOMER and nothing in these Terms and Conditions will be construed as to deem S2S, or Consultants to be an employee, servant, partner or joint venture of the CUSTOMER.
29. Remedies Not Exclusive
No remedy conferred by any provisions of these Terms and Conditions is intended to be exclusive of any other remedy and each and every such remedy will be cumulative.
30. Severability
If any provision of these Terms and Conditions is declared invalid or unenforceable by any court or authority of competent jurisdiction all other provisions of these Terms and Conditions will remain in full force and effect and will not in any way be impaired; and the parties will meet to agree a replacement provision which is as close as is legally permissible to the provision found invalid, or unenforceable.
31. Entire Agreement
31.1 These Terms and Conditions constitute the whole agreement and understanding between the parties with respect to the subject matter of the Framework Agreement and any Contracts and supersede all prior agreements, negotiations and discussions between the parties relating to the subject matter of the Framework Agreement and any Contracts.
31.2 The CUSTOMER acknowledges that, save for fraudulent misrepresentation, it has not entered into the Framework Agreement or a Contract in reliance on any statement or representation, whether or not made by S2S, except in so far as the representation has been incorporated into these Terms and Conditions or a Contract.
31.3 Both parties irrevocably and unconditionally waive any right they may have to claim damages and/or to rescind the Framework Agreement or any Contract by reason of any misrepresentation (other than a fraudulent misrepresentation) not contained in these Terms and Conditions or a Contract.
32. Order of Precedence
In the event of any conflict or inconsistency between the various documents forming part of a Contract the following order of precedence shall apply:
(a) the Contract;
(b) these Terms and Conditions.
33.Notices
33.1 Any notice to be given under these Terms and Conditions must be in writing (a “Notice”) and delivered personally, sent by first class post, email, or facsimile transmission to the address set out in this Clause 33. A notice sent by email or facsimile is not valid unless a copy of the notice is also sent personally or by first class post.
33.2 The address for service of Notices to S2S will be: Ground Floor, Overline House, Station Way, Crawley, RH10 1JA Fax: 0870 350 4526 E-mail:
This e-mail address is being protected from spambots. You need JavaScript enabled to view it
or as otherwise notified.
33.3 The address for service of Notices to the CUSTOMER will be the CUSTOMER’s address as set out in the Contract or, in the absence of such address, it shall be the address notified by the CUSTOMER when applying for a credit facility or the registered offices of the CUSTOMER or in the absence of the previous addresses then the installation address of the Equipment.
33.4 A Notice will be deemed to have been served:
(a) if personally delivered, at the time of delivery;
(b) if posted, two Business Days after 1st class posting;
(c) if sent by facsimile, when clearly received in full, if before 5pm in the receiver’s country, or otherwise on the next Business Day; or
(d) if sent by email, on automatic return delivery receipt of the email to the sender, whether or not read or opened by the party receiving the Notice.
34. Variations
No amendment to these Terms and Conditions will be effective unless made in writing and signed by the parties or their duly authorised representatives.
35. Dispute Resolution
35.1 Except where expressly provided otherwise in these Terms and Conditions or any Contract under it, any dispute, performance related issue or other problem arising out of or in connection with the Framework Agreement or any Contract shall be resolved in accordance with the following dispute resolution procedure.
35.2 Except as mentioned in this Clause 35, neither party may commence court proceedings in respect of a dispute under the Framework Agreement or any Contract unless that party has first complied with Clauses 35.3 to 35.5. A party is not required to comply with Clauses 35.3 to 35.5 if the other party fails to comply with, or to give effect to, those Clauses.
35.3 All disputes between the parties arising out of or relating to the Framework Agreement or a Contract shall be referred, by either party, to the personnel described as follows:
CUSTOMER S2S
Level 1 Project Manager Project/Account Manager
Level 2 Director Director
35.4 If any dispute has not been resolved by the relevant level within a maximum of fourteen (14) days for each level after it has been referred under Clause 35.3, that dispute shall be referred to the most senior members of both parties.
35.5 If the dispute has not been resolved by the most senior members of both parties in accordance with Clause 35.4 within a maximum of fourteen (14) days after it has been referred under that Clause, either party shall be free to commence court proceedings in accordance with Clause 37.
35.6 Both parties acknowledge that, notwithstanding the provisions of this Clause 35, nothing in these Terms and Conditions or any Contract shall prevent either party from bringing proceedings to protect the Intellectual Property Rights or rights of confidentiality of that party without having first complied with Clauses 35.3 to 35.5.
36. Third Party Rights
The parties agree that the Contracts (Rights of Third Parties) Act 1999 do not apply to the Framework Agreement or any Contract under it. No term of the Framework Agreement or any Contract under it will be enforceable by any person who is not a party to it (whether in accordance with that Act or otherwise) and this Clause will prevail in the event of any conflict between it and anything else in these Terms and Conditions or any Contract.
37. Law and Jurisdiction
The Framework Agreement and any Contracts are governed by the laws of England and Wales and the parties submit to the exclusive jurisdiction of the English Courts.
Standard Terms and Conditions of website usage
The following Terms and Conditions will apply when you access our website (the "Website").
1. Contract Information 1.1. The purpose of this Website is to provide information to you about s2s Limited and its products and services. The information placed on this Website by us does not constitute an offer to sell any of the products and/or services appearing in this website to you. Instead, we are inviting you to contact us to discuss best how we can fulfil your requirements. Any subsequent order that we receive from you will be governed by a separate agreement entered into between us, or, in the absence of such an agreement, by our standard Terms and Conditions of sale in force at the time. The current version of our standard Terms and Conditions of sale is available for inspection on this Website http://www.s2s.ltd.uk/header-legal.htm.
1.2. We reserve the right to:
(a) add, delete, or modify these Terms and Conditions and/or the contents of this Website at any time without notice; and
(b) reject any offer to purchase products and/or services.
2. Transmitted Materials 2.1. You agree not to post or transfer to our Website (nor include in any message) any material which is obscene, misleading, inaccurate, defamatory, illegal, in breach of any copyright or other intellectual property right, or damaging to data, software or the performance of our or any other parties’ computer system. You agree to indemnify us in respect of any liabilities, losses, expenses, or other costs whatsoever incurred as a result of a breach of your obligation under this condition 2, including, but not limited to, any claims made against us by any third party.
2.2. Any materials, information, or ideas that you transmit to or post to the Website is deemed non-confidential and non-proprietary and we have no obligations to you or any third party in respect of the same, including (without limitation) any obligations of confidentiality.
3. Data Protection 3.1. The Data Protection Act 1998 is designed to protect individuals about whom information is entered and stored on computer and other systems. Accordingly, it lays down strict standards of accuracy, relevance and care of such data including how it may be divulged. Any data about living individuals you enter onto our Website directly or include in any message to us will be subject to the Act and you are responsible for its accuracy and relevance and must have the authority to disclose it and for us to utilise it for the purposes of any transaction concluded for or by you through this Website. If you are in any doubt about any personal data, please feel free to email us with details of the problem first.
4. Intellectual Property Rights 4.1. In consideration of agreeing to your use of this Website, you acknowledge that the ownership in any intellectual property rights (including, for the avoidance of doubt, copyright) in this Website belongs to us. Accordingly, any part of this Website (or any source code) may not be used, transferred, copied or reproduced in whole or in part in any manner other than for the purposes of utilising this Website, meaning that you may only display it on your computer screen and print it out on your printer for the sole purpose of viewing its content.
4.2. You may only use the trademarks featured in our website for the purpose of displaying this website on your computer screen or printing out this website on your printer in accordance with condition 4.1 above.
4.3. Except to the extent expressly permitted by these Terms and Conditions and by applicable law, no contents on this Website may be used, copied, modified, translated, distributed or otherwise utilised without our prior written consent.
5. Links 5.1. Except for this Website, we do not operate or maintain contents on websites that are directly or indirectly linked from this Website (the "Linked Sites").
5.2. Any reference to a Linked Site or to a specific third party's product or service on the Website or a Linked Site, is not a recommendation by us.
5.3. We do not make any warranties, representations or undertakings about the content of any Linked Sites which may be referred to or accessed by hypertext link with this Website and we disclaim liability for access to and use of such Linked Sites to the fullest extent permitted by law.
6. Disclaimers of Warranties 6.1. The contents on this Website are provided "AS IS" without warranties of any kind, either express or implied (including, but not limited to, any implied warranty of merchantability, fitness for a particular purpose, title, or non-infringement of third parties' rights) to the fullest extent permitted by law.
6.2. We do not warrant that the contents of this Website are error-free.
6.3. We will use reasonable efforts to place accurate and up-to-date information on this Website but make no warranty of its accuracy, completeness and/or timeliness.
7. Limitation of Liability We are not liable to you for direct, indirect, incidental or consequential loss, punitive, or other damage (including, but not limited to, economic losses, lost profits, lost revenues, or lost data) incurred by you or any third party, arising out of your access to or your inability to access this Website, even if we have been advised that the possibility of such loss or damage occurring in the circumstances was reasonably foreseeable.
s2s Email Disclaimer
This e-mail and any files attached to it are private and confidential and are intended solely for the use of the individual or entity to which they are addressed. If you are not the addressee(s) please notify s2s immediately at the above e-mail address or telephone +44 (0)870 350 4525 and delete all copies of the e-mail from your system. Any unauthorised dissemination or copying of this e-mail or its attachments and any use or disclosure of any information contained in them is strictly prohibited.
Although s2s scans all e-mails and attachments for viruses, it does not represent or warrant that either are virus-free or free from any other defect which might affect any computer system into which they are received or opened and it is the responsibility of the recipient to ensure that they are virus and defect free.
s2s does not accept any responsibility for the accuracy, completeness or timely delivery of this message as it has been transmitted over a public network. If you suspect that the message may have been intercepted or amended please call the sender on the above number.
No responsibility is accepted by s2s for any loss or damage (including, but not limited to, loss of profits, loss or goodwill, direct, indirect or consequential loss) arising in any way from receipt of use of this e-mail and/or attachment(s) no matter whether such loss or damage was reasonably foreseeable and/or whether s2s had been given advance notice of such consequence and s2s excludes all liability in this respect to the fullest extent permitted by law.
Any views expressed by an individual within this e-mail do not necessarily reflect the views of s2s. Any e-mails sent to s2s personnel may be monitored by systems or persons other than the intended recipient for the purposes of ascertaining whether the communication complies with the law and with s2s policies.
