Supplemental - Support Services
Where a Customer purchases Support Services from Trustack, these Supplemental Terms shall apply, in addition to those in the Agreement.
Interpretation
These additional definitions apply:
Additional Service Charges | the charges payable in consideration of the provision of any services outside of scope of the Support Services, which shall be calculated at Trustack’s then current prices. |
Call | communication received by Trustack from the Customer reporting a defect or malfunction. |
Commencement Date | as set out in the Quotation. |
Know-how | information which the Customer owns or possesses, which Trustack requires for the provision of the Support Services. |
Hardware | the hardware items owned or used by the Customer, as set out in the Quotation. |
Location | the site(s) and location(s) where the Hardware and/or Software is installed as agreed by Trustack and identified in the Quotation. |
Out of Hours Services | provision of on call support 24 hours per day, 7 days per week. |
Renewal Term | 12 (twelve) calendar month periods, unless otherwise agreed in writing. |
Response Category | either business critical, high priority or low priority in accordance with the details set out in the SLA. |
SLA | the service level agreement as set out in Schedule 1. |
Software | the software used by the Customer, as set out in the Quotation. |
Support Charge | the charge by Trustack to the Customer for provision of the Support Services as set out in the Quotation. |
Support Hours | 8.30am – 5.00pm GMT on a Business Day. |
Support Services | the Hardware maintenance and/or Software support services to be provided by Trustack to the Customer, as agreed in the Quotation. |
System | means either the Hardware, Software and/or associated operating system software (or a combination) used by the Customer which may comprise one or more computer system; |
Term | the period of time it is agreed that Trustack is to provide Support Services, as set out in the Quotation. |
1. Support Service Term
1.1 These Supplemental Terms commence on the Commencement Date and will continue for the Term, after which it will automatically renew for the Renewal Term and shall continue to renew in this way, subject to then current prices, and terms and conditions, until terminated by either party.
1.2 Either party may terminate these Supplemental Terms by providing not less than 60 (sixty) days written notice to expire no earlier than the expiry date of the Term or Renewal Term.
2. Provision of the Support Services
2.1 Trustack will provide the Support Services to the Customer in accordance with these Supplemental Terms.
2.2 All Support Services will be performed within the Support Hours. Out of Hours Services can be provided by arrangement and will be charged for at Trustack’s then current out of hours rates, as set out in the Quotation.
3.1 If the Customer requires support, it should log a Call with Trustack using the contact details set out in the Quotation or such other contact methods as Trustack may advise during the Term.
3.2 Trustack will use its reasonable endeavours to respond within the response times set out in the SLA.
3.3 After reviewing a Call from the Customer, Trustack will, acting reasonably and with the co-operation of the Customer, categorise the error to a Response Category.
3.4 The time taken to respond to the Customer is measured starting from the time a Call is received or voicemail is picked up by Trustack.
3.5 In the first instance, Trustack will use its reasonable endeavours to rectify defects or malfunctions by means of telephone support or, where agreed with the Customer, by the use of remote access.
3.6 If Trustack is unable to rectify any defects or malfunctions by telephone, or remote access where applicable, then Trustack will attend, during Support Hours, the Customer’s site to perform the Support Services. Trustack may at its discretion sub-contract its obligations to rectify any defects or malfunction to an appropriately qualified third party.
3.7 In carrying out the Support Services, and unless Trustack has advised the Customer procure an identified vendor warranty (in which case this paragraph shall not apply), Trustack may at its discretion provide a permanent replacement part, either new or refurbished, and on exchange that part becomes the Customer’s property, and the faulty part replaced becomes Trustack’s property.
3.8 Trustack may at its discretion, lend the Customer temporary replacement equipment (as compatible as may be available) while repairs are carried out. Any such equipment remains Trustack’s property and will be returned to Trustack on demand. The Customer is entirely responsible for the loaned equipment and will indemnify Trustack in respect of any loss or damage to that equipment.
3.9 Trustack may make use of new releases, patches and updates of third party Software to rectify existing, live problems where this is permitted under the applicable software licence agreement.
3.10 Customers with Out of Hours Services agree and acknowledge that Trustack will only:
3.10.1 respond to business critical Response Category Calls outside of Support Hours; and
3.10.2 aim to return the failed component to a stable and operational state outside of Support Hours and any related non-critical work including without limitation root cause analysis or minor failed components may be undertaken and replaced during Support Hours only.
3.11 If the Customer has opted for pro-active support (as outlined in the Quotation), Trustack may continually monitor remotely a Customer’s Hardware, Software and live services to ensure that they are functioning correctly. This will be done through the use of third party monitoring tools and logs which the Customer will agree to in advance. Where any errors or potential problems are identified by Trustack it will take such reasonable steps to address these as it sees fit at its ultimate discretion. Wherever possible it will seek the Customer’s prior approval (which may be verbal or in writing), but the Customer acknowledges that this may not always be possible or practical.
3.12 The Customer acknowledges that Trustack pro-actively monitor a Customer’s Hardware, Software and live services during the hours of 08.30 and 17.00 on Business Days.
4. Acceptance into Service
If the Hardware and/or Software is not already subject to maintenance obligations by Trustack then prior to the Commencement Date in respect of the Support Services, Trustack may during Support Hours inspect the Hardware and/or Software to confirm that it is, in Trustack’s opinion, in full working order in accordance with the relevant manufacturer’s requirements. If, in Trustack’s opinion, any work is required to put the Hardware and/or Software in such condition Trustack will notify the Customer and, thereafter, undertake such works at the cost of the Customer at Trustack’s then current prices. If the Customer declines to have such works carried out within 30 (thirty) days of notification, Trustack reserves the right to exclude any such items of Hardware and/or Software from the Support Services.
5.1 Trustack reserves the right not to provide the Support Services and to charge for costs and expenses incurred if a Call is not warranted, access to the System is hindered or the environmental conditions at the Location are considered by Trustack to be unsafe or hazardous.
5.2 The provision of the Support Services is expressly subject to the proper use of the Hardware and/or Software in accordance with the relevant manufacturer’s user instructions, current computing practice and Trustack’s instructions and specifications from time to time or (if there are none) good trade practice.
5.3 The Support Services do not include:
5.3.1 operating supplies and accessories such as magnetic media and disk packs and other consumables, which must be paid for by the Customer;
5.3.2 electrical or signal cabling work external to the System, or maintenance of accessories, alterations, attachments or other devices not furnished by Trustack, or installation, decommissioning, removal, relocation or reconfiguration of Hardware, unless specifically provided for in the Quotation;
5.3.3 hardware and software not covered by these Supplemental Terms;
5.3.4 assistance with relocation of any part of the Hardware;
5.3.5 works which are unsafe or impractical for Trustack to carry out because of alterations in the Hardware or its connection by mechanical or electrical means to machines or devices otherwise than those installed or connected by Trustack;
5.3.6 works to be carried out in an environment considered in the opinion of Trustack to be unsafe or hazardous;
5.3.7 any work arising by reason of any breach by the Customer of its obligations under these Supplemental Terms;
5.3.8 any work arising from any accident, neglect, alterations, improper use or misuse of the Hardware or necessitated by repairs attempted by non-Trustack personnel;
5.3.9 any Hardware not specified in the Quotation or subsequently agreed in writing to be subject to the Support Services;
5.3.10 refurbishment or repair of casings or outer surfaces;
5.3.11 failures or defects due to manufacture or design defects over which Trustack has no control;
5.3.12 any reinstatement of software and data not specifically identified in the Quotation, or subsequently agreed in writing to be subject to Support Services;
5.3.13 the cleansing of viruses and spyware or resolving the consequences of security breaches and incompatibilities in Hardware and/or Software;
5.3.14 any necessary upgrading to the Customer’s operating platform to enable the Customer to operate its chosen applications;
5.3.15 normal operator functions as described in the operating manual of the relevant manufacturer/supplier;
5.3.16 printer heads, ribbons, batteries, toner cartridges, ink and other consumable supplies or accessories;
5.3.17 except as otherwise agreed in writing between the parties, the monitoring of the accuracy or effectiveness of any back up routines operated by the Customer;
5.3.18 works required due to the Customer or a third party moving the Hardware;
5.3.19 works required due to a failure, interruption or surge in the electrical power or its related infrastructure connected to the Hardware;
5.3.20 works required due to a failure or malfunction in the air conditioning or other environmental controls required for the normal operation of the Hardware, or an error or omission in the correct use of that air conditioning or other environmental controls by the Customer; or
5.3.21 works required due to the neglect or misuse of the Hardware.
5.4 Reconditioning may become necessary on certain items of Hardware with a high mechanical content after a considerable period of use. Trustack may give the Customer notice if, in its opinion, any item of Hardware (or any part of it) needs reconditioning or is end of life, beyond reasonable economic repair or spare parts are not readily available and from the date of such notice the obligations as to Support Services in respect of such Hardware are suspended. Any such work is at the Customer’s expense and Trustack are under no obligation to replace or renew the Hardware (or any part of it). If the Customer declines to have such Hardware reconditioned, repaired or replaced in accordance with Trustack’s recommendations within 30 (thirty) days of the date of such notice then Trustack may remove such Hardware from the provision of the Support Services.
5.5 The provisions of paragraph 5.4 will apply equally to any Software comprised within the Hardware which Trustack believes is no longer economically viable to maintain or requires updating or upgrading.
5.6 Unless otherwise agreed in writing between the parties, the successful delivery of the Support Services is dependent upon active and up-to-date warranty, subscription, and/or support on all Hardware and/or Software. Where no such warranty, subscription and/or support is in place, the terms of these Supplemental Terms no longer apply to the un-supported Hardware and/or Software. In such circumstances Trustack will continue to offer support on said Hardware and/or Software on a reasonable endeavours basis only.
5.7 Without prejudice to paragraphs 5.4 and 5.5, where any engineering changes are considered by Trustack to be essential for continued good performance (which will include any requirements or changes in specifications reasonably deemed necessary by Trustack in the interests of providing the Support Services in an efficient and effective manner) and the Customer precludes or is unable to provide Trustack with access to the Hardware and/or Software at such reasonable times during the Support Hours as Trustack shall reasonably require to implement the same, then the obligations as to Support Services in respect of such Hardware and/or Software is suspended until such engineering changes have been implemented. If the Customer declines to implement such engineering within 30 (thirty) days of the date of notice from Trustack requiring the same, then Trustack may remove the Hardware and/or Software to which such changes relate from the provision of the Support Services.
6.1 Provision of the Support Services does not imply any guarantee or representation that Trustack will be able to assist the Customer in achieving any results which are not technically feasible. Subject to this, any services which are outside the scope of these Supplemental Terms will, at the Customer’s request and at Trustack’s sole option, be provided on such terms as the parties may agree from time to time and shall incur additional charges.
6.2 Trustack cannot absolutely guarantee that all data, if providing back-up service for the Customer, will be free of corruption and recoverable.
6.3 Provision of the Support Services does not imply any guarantee that Trustack will be successful in correcting any malfunctions and Trustack does not accept any liability in this connection.
6.4 Trustack reserves the right to refuse to provide the Support Services at any time without refunding any sums paid by the Customer:
6.4.1 if any attempt is made, other than by Trustack, to remove any defects or deal with any errors in the Hardware and/or Software during the Term;
6.4.2 if any development, enhancement or variation of the Hardware and/or Software is carried out other than by Trustack;
6.4.3 if the Customer has failed to pay any of Trustack’s invoices in accordance with the provisions of these Supplemental Terms;
6.4.4 if the Customer has failed to comply with any of its responsibilities under these Supplemental Terms; or
6.4.5 where, in the reasonable opinion of Trustack, the Customer’s system has ceased to be capable of running any software successfully for any reason.
7.1.1 provide Trustack and its agents, subcontractors and employees, full and free access, in a timely manner and at no charge, to the Hardware and/or Software, the Location, office accommodation, data, Know-how, personnel and other facilities to perform the Support Services and the Customer shall indemnify Trustack from and against additional expenses suffered by Trustack by denial of such access;
7.1.2 be responsible (at its own cost) for preparing and maintaining the Location for the supply of the Support Services and ensure that throughout the Term it will maintain environmental conditions in accordance with Trustack’s instructions and specifications or (if there are none) good trade practice;
7.1.3 inform Trustack of all health and safety rules and regulations and any other reasonable security requirements that apply at any of the Locations;
7.1.4 ensure that the Hardware and/or Software is only used by properly trained staff in accordance with the relevant manufacturer’s user/operator instructions, current computing practice and Trustack’s instructions and specifications from time to time;
7.1.5 ensure that the Hardware and/or Software is not altered, repaired, modified, configured, maintained, replaced or removed by anybody other than Trustack;
7.1.6 maintain adequate records of the use, maintenance and malfunction of the Hardware and/or Software and will provide Trustack with such information and assistance concerning the Hardware and/or Software, its application, use, location and environment as Trustack may reasonably require so to enable it to carry out the Support Services;
7.1.7 notify Trustack prior to any change in location of any part of the Hardware. Whilst any Hardware is being moved, all obligations to provide the Support Services will be suspended and will be reinstated only following re-installation of the Hardware at a location agreed with Trustack, provided that the Hardware has:
7.1.7.1 not been damaged or affected during the move;
7.1.7.2 network connectivity is restored
7.1.7.3 connectivity to peripherals is restored; and
7.1.7.4 software that is fully operational to the same standard as applied prior to the change in location taking place.
7.1.8 be responsible for the cost of any third party software licences and upgrades which Trustack advise are required;
7.1.9 in a manner acceptable to Trustack, operate and verify a proper configuration back up routine, maintaining all backup copies in a secure environment such that they can and will be provided to Trustack as and when required (unless such Service is provided by Trustack to the Customer);
7.1.10 put and keep in place adequate security measures to protect the Hardware and any other software or data from viruses, harmful code or unauthorised access;
7.1.11 where Trustack is to provide the Support Services by means of remote access, to put and keep in place at the cost of the Customer, any such devices as maybe be required to enable remote access as advised or communicated by Trustack;
7.1.12 provide to Trustack the primary and secondary contacts appropriately qualified and trained to an acceptable standard authorised to request the Support Services and inform Trustack accordingly of any changes during the Term. Authorised use of the telephone helpline is limited to these designated contacts;
7.1.13 be solely responsible for ensuring that all consents and licences are obtained and maintained in respect of the Hardware and the Software necessary for the performance of the Support Services by Trustack, and warrant as such; and
7.1.14 warrant that the Hardware and the Software will by the Commencement Date be in reasonable working order and condition for the purpose of performing the Support Services.
8.1 Unless expressly agreed to the contrary, the Customer will be invoiced annually or monthly in advance for the Support Charge. Expenses, Additional Service Charges and other charges will be invoiced monthly in arrears. All invoices are payable net 30 (thirty) days from receipt. All charges are exclusive of VAT and any similar taxes, which will be applied in accordance with prevailing legislation in force at the tax point date.
8.2 Trustack reserves the right to increase the Support Charge where quantities and/or locations of Hardware, Software and/or services have changed and thus represent additional cost of support to Trustack.
8.3 All prices quoted in the Quotation, or otherwise, are exclusive of expenses incurred in the performance of these Supplemental Terms by Trustack, which will be chargeable in addition.
8.4 Expenses include: travel to the Location (or other location) when applicable; magnetic media; data connection charges; couriers; freight; accommodation; and any other expenses reasonably incurred by Trustack in connection with these Supplemental Terms.
8.5 Trustack will be entitled to increase its Support Charge by a minimum of 5% on the anniversary of the Term on written notice to the Customer.
9. Ownership of Software, Data, Information and Know-How
9.1 Software
9.1.1 The Customer owns or is authorised to sub-license all copyright and other Intellectual Property Rights in the Software.
9.1.2 The Customer grants a non-transferable, non-assignable, non-exclusive licence and/or shall procure such third party permissions as may be necessary so as to enable Trustack to use and support the Software during these Supplemental Terms on the terms and conditions set out in this paragraph (Licence) for the purposes of providing the Support Services.
9.1.3 Subject to clause 16 of the Agreement (Limitation of Liability), Trustack and the Customer agree that:
9.1.3.1 the Software and all copies of it, will remain at all times the property of the Customer and that Trustack is not entitled to any rights or interests in the Software other than those expressly granted in this Licence;
9.1.3.2 the Software is confidential information of the Customer and Trustack will not disclose any of the Software or supply any copies of any of it to any person other than in the performance of the Support Services under the terms of this Licence, including appropriate express obligations of confidentiality;
9.1.3.3 Trustack will not use any Software directly or indirectly otherwise than in connection with providing the Support Services;
9.1.3.4 Trustack will not permit any copy of the Software to be made except for reasons of providing the Support Services.
9.1.4 Copyright and all other Intellectual Property Rights created by Trustack during the provision of the Support Services will vest absolutely in Trustack and Trustack reserves the right to grant licences to use such modifications and enhancements to the Customer and any third parties.
9.1.5 The Customer will indemnify Trustack against any expense, loss or damage incurred by Trustack as a result of any claim or allegation that Trustack’s licensed use of the software infringes the Intellectual Property Rights of a third party.
9.1.6 Upon termination of these Supplemental Terms, the Licence will terminate, and Trustack will return the Software in its possession (if any) to the Customer.
9.2 Data, information and Know-how
9.2.1 The Customer grants Trustack a non-exclusive, royalty-free licence to use Know-how for the purposes of fulfilling Trustack’s obligations to provide the Support Services. Trustack undertakes not to use or otherwise deal with the Know-how for any other purpose.
9.2.2 For the avoidance of doubt, the parties agree that all data and information passed to Trustack by the Customer or generated in the course of the Support Services will remain at all times the property of the Customer. The Customer grants to Trustack a non-exclusive, royalty-free licence to use the Customer’s data, information and Know-how as necessary for the purpose of fulfilling Trustack’s obligations under these Supplemental Terms.
9.2.3 Trustack will not acquire any right in the Customer’s data or information. Trustack will take all necessary steps to ensure that it will not use nor reproduce any such data, information or Know-how which comes into its possession or control except as required to provide the Support Services under these Supplemental Terms.
Schedule 1 – SLA
Response Category | Description | Target Response Times |
Business Critical | Live Production Systems are down and business is affected or critical business systems are impacted due to infrastructure failure and business cannot continue | 2 (two) hours within the Support Hours from receipt by Trustack of a Call |
High Priority | Systems are impacted i.e. performance or functionality but business can continue | 4 (four) hours within the Support Hours from receipt by Trustack of a Call |
Low Priority | Systems display errors but are not affected, business is not impacted | 2 (two) Business Days from receipt of the Call |