These terms are the standard terms upon which services are supplied by Ethos as referred to within Ethos’s correspondence and the Quotation (as defined below). These terms create binding legal obligations upon you (the Customer). Please read and understand them. If you do not understand any part of them please let us (Ethos) know.
1.1 In these terms (these “terms”), the following words shall have the following meanings:
“Authorised User” means any party granted permission by the Customer to access any System within scope of Services;
“Basic Requirements” means the standards for the System, upon which successful supply of the Services is dependant, as set out or referred to in the Quotation, upon the website of Ethos located at https://ethos.ltd or otherwise notified by Ethos to the Customer;
“Business Day” means a day other than a Saturday, Sunday or public holiday;
“Business Hours” means 0900 to 1700 on a Business Day;
“Charges” means the charges set out, or referred to, in an Quotation;
“Commencement Date” means the date referred to as such in an Quotation;
“Communications Facilities” shall have the meaning set forth in clause 6.7;
“Confidential Information” means information concerning the business and affairs of a party that is either marked as confidential or which should reasonably be considered as confidential;
“Contract” means the agreement for the supply of the Services which includes these terms, the Quotation, and any documents referred to in either of the foregoing;
“Customer” means the person named as such in the Quotation;
“Ethos” means Ethos IT Solutions and Services Ltd a company registered in Scotland with company number SC615112 whose registered office is at 3/2 46 Mavisbank Gardens, Glasgow, G51 1HL;
“Dependencies” means the requirements which must be fulfilled in a manner satisfactory to Ethos to allow the Services to be provided;
“Force Majeure Event” means an event beyond the reasonable control of a party;
“Hardware” means any hardware supplied by Ethos;
“Network” means the circuits and other hardware and software resident on the current network at the Site(s);
“Protected Credentials” means any credentials which grant elevated access on any System that is within scope of the Services;
“Quotation” means Ethos’s quotation issued to the Customer which inter alia describes the Services and sets out the Charges;
“Representatives” means the representatives of the parties as set out in a Quotation;
“Service Levels” mean the service levels referred to in the Contract;
“Services” means the services referred to in the Quotation, to be supplied by Ethos;
“Service Period” means the period during which the Contract is in effect;
“Site(s)” means any sites of the Customer where the Services are to be delivered;
“Software” means any software supplied by Ethos;
“System” means the Hardware, Software, Network, Communications Facilities, and any other hardware, software or information technology
systems or facilities utilised by the Customer; and
“Third Party Services” means any part of the Services provided by a third party.
“User Credentials” means any credentials given to any Authorised User;
1.2 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality). A reference to a party includes its personal representatives, successors or permitted assignees. A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted and a reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or reenacted. Any phrase introduced by the terms “including”, “include”, “in particular” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms. A reference to writing or written includes faxes and e-mails. All references to times are to the local time in Scotland.
2.1 Any request by the Customer for services shall constitute an offer by the Customer to purchase those services in accordance with these terms. No agreement shall come into force between Ethos and the Customer until Ethos has confirmed its acceptance of that offer, or Ethos has taken any action consistent with fulfilling the Quotation at the request or with the consent of the Customer, at which point in time the Contract shall enter into force. The Contract shall remain in force until the end of the Service Period. On completion of the Service Period, unless specified otherwise in the Contract or notified by Ethos to the Customer, the Contract shall automatically renew for a further period equal to the Service Period, unless specified otherwise in the Contract, and thereafter for further successive periods of such length, until the Contract is terminated in accordance with its terms. The Customer may terminate the Contract at the end of the Service Period, or any renewal thereof, by giving not less than ninety (90) days notice to Ethos.
2.2 These terms apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate (whether referenced or contained in any correspondence between the parties, or otherwise), or which are implied by trade, custom, practice or course of dealing. In the event of a conflict between the parts of the Contract the following order of precedence shall apply: the Quotation, these terms.
2.3 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of Ethos which is not set out in the Contract.
2.4 Unless otherwise stated, the Service Period of the Contract is 36 months.
3.1 In consideration of the Customer’s ongoing adherence to the Contract, and conditional upon completion of the Dependencies in a manner satisfactory to Ethos, Ethos shall supply the Services to the Customer. Ethos shall use reasonable endeavours to meet the Service Levels in all material respects in its supply of the Services.
3.2 The Services shall be provided during Business Hours, unless agreed otherwise between the Customer and Ethos.
3.3 The Services are provided subject to the various policies and procedures of Ethos available upon its website located at https://ethos.ltd, which shall form part of the Contract. These policies and procedures may change from time to time, to take account of matters such as technological change, best practice and change in applicable regulation, as may other items referred to within these terms. The Customer is advised to remain acquainted with such policies and procedures, and other items, by visiting the website and familiarising itself with the information available there on a regular basis. The Customer agrees that any changes to such policies and procedures, and other items, which may be made by Ethos from time to time shall be automatically incorporated into the Contract.
3.4 Where the Customer is provided with access to, or copies of, documentation relating to any Hardware or Software, the Customer shall adhere in full to any requirements set out therein, for example any requirements, protocols or restrictions relating to use of the Hardware or Software.
3.5 The Customer acknowledges and agrees that Ethos may process personal data relating to, or held by, the Customer in providing the Services. The Customer consents to, and shall obtain and maintain all necessary third party consents, to allow such processing. The Customer further acknowledges and agrees that as part of such processing such personal data may be transmitted to, held and further processed by Ethos (or by persons acting on its behalf) out with the European Economic Area.
3.6 The Customer acknowledges and agrees, subject always to clause 5.3, that the following items are expressly excluded from the Services:
3.6.1 Services in respect of any part of the System not expressly listed within the Contract as to be supported and/or maintained;
3.6.2 rectification of any defect or error where such arises due to the negligent act or omission or breach of Contract by the Customer;
3.6.3 support and/or maintenance of any part of the System covered by a third party warranty;
3.6.4 provision of Services outwith Business Hours; and
3.6.5 access to the Services beyond the scope of any restrictions and limitations, for example fair use limitations and restrictions, set out in the Contract or any document referred to in it (for example the policies and procedures of Ethos as referred to in clause 3.2).
3.7 Unless stated otherwise within the Contract, Ethos are not providing advice in respect of System architecture, design or capability, or the ability of the System to meet the needs and requirements of the Customer.
4.1 The Customer shall:
4.1.1 ensure that the System is maintained in a satisfactory operating condition throughout the Service Period;
4.1.2 ensure that the System meets the Basic Requirements at all times, and in this respect the Customer acknowledges that Ethos’s supply of the Services is dependant upon the Customer maintaining the System in accordance with the Basic Requirements;
4.1.3 ensure that it is validly licensed to utilise the System, and to allow Ethos to provide the Services in respect of the System;
4.1.4 where Ethos are providing support and maintenance Services, use its best endeavours to resolve any fault itself in accordance with any directions of Ethos prior to contacting Ethos to request Services;
4.1.5 maintain appropriate occupiers, public and third party insurances in respect of the Sites and any parts of the System thereon;
4.1.6 retain any tangible property of Ethos left at the Sites in a safe and secure manner, and not interfere with any markings thereupon;
4.1.7 keep full security copies (running back ups on a daily basis) of all software, and its data, databases and computer records in accordance with best industry practice;
4.1.8 maintain antivirus and firewall protection in respect of the System which accords with best industry practice;
4.1.9 not by act or omission bring Ethos into disrepute, or cause a likelihood of disrepute to arise; and
4.1.10 conduct all of its activities in accordance with all applicable laws, regulations and guidance of any regulatory authority (including any authority entrusted with functions relating to the protection of personal data).
4.1.11 not attempt to utilise or share any Protected Credentials without the prior agreement of Ethos;
4.1.12 ensure no Authorised User attempts to share any User Credentials with any third party, external or internal, without prior agreement of Ethos;
4.2 The Customer undertakes to supply to Ethos all information and access to its staff, contractors, the Sites and the System that Ethos requires to allow fulfilment of the Dependencies and delivery of the Services to the Customer, including all information detailing site related matters (such as access and security protocols), along with any other information and access relating to the Contract or the Customer that Ethos may request from time to time. The Customer further undertakes to provide all assistance required by Ethos to ensure the fulfilment of the
Dependencies and delivery of the Services to the Customer.
4.3 If the Customer is dissatisfied with any Services the Customer must notify Ethos of this within five (5) Business Days of their delivery, failing which the Customer shall be deemed to have accepted the Services.
5.1 The Customer shall pay to Ethos the Charges.
5.2 Ethos may revise the Charges at the end of each Service Period to take account for changes in the cost of providing the Services. The Charges are also set according to Ethos’s understanding of the Customer’s requirements, and on the basis that any information given to Ethos by the Customer is accurate in all respects. If Ethos’s understanding changes due to any act or omission of the Customer, and/or if any such information is found to be inaccurate, Ethos may amend the Charges to account for the same, and the Customer shall be bound to pay the revised Charges.
5.3 Where Ethos provide any services outwith the scope of the Services or beyond the scope of its obligations hereunder at the request of the Customer, such services shall be provided on the terms of the Contract and be deemed to form part of the Services automatically. The Charges for such services shall be calculated according to Ethos’s time and materials rates as set out in the Quotation, failing which upon its website or as otherwise notified to the Customer. Further, the Customer shall also meet Ethos’s charges calculated on a time and materials basis according to Ethos’s normal hourly rates set out in the Quotation, failing which upon its website or as otherwise notified to the Customer, for fulfilling any Dependencies, for example any Site surveys required to enable provision of the Services.
5.4 The Customer, in addition to payment of the Charges, shall reimburse Ethos for all costs and expenses incurred or to be incurred by Ethos in its provision of the Services. Ethos shall provide evidence of the same on request of the Customer, to the extent reasonably available.
5.5 Ethos shall be entitled to invoice the Customer for any sums due hereunder upon such frequency as it determines. All invoices shall be payable within the period set out in the invoice. Ethos may require that the Customer enter into a direct debit or standing order for payment of sums due hereunder, and/or require that the Customer provides a payment to account against sums likely to arise as due from the Customer.
5.6 Ethos shall be entitled to set off any sums due by it to the Customer against any sums due to it by the Customer.
5.7 Ethos may charge interest on any sums remaining due to it beyond their due date at a rate of eight per cent (8%) over the base rate of the Bank of England applicable at the due date until payment in full, whether before or after judgement.
5.8 The Customer shall in addition to payment of the Charges and any other sums due hereunder pay to Ethos all value added tax, duties or other similar levies due thereon. The Customer shall be liable to pay such amounts as and when the relevant principal sums become due.
5.9 If the Customer is obliged by applicable law, order of any governmental or regulatory authority, or otherwise, to withhold any sum due to Ethos, the Customer shall pay such additional sum to Ethos so that Ethos actually receives in full and cleared funds the amount that it would have received but for such withholding.
6.1 Risk in any Hardware or Software shall pass to the Customer when left at the Site.
6.2 Subject always to the other terms of the Contract, and provided always that the Customer is not in breach of the Contract:
6.2.1 title to Hardware shall pass to the Customer on full payment of all sums due to Ethos under the Contract and any other agreement between the parties (unless the Contract specifies otherwise, for example where the Contract states that Hardware will be made available on a leased basis only); and
6.2.2 under no circumstances shall any title to Software pass to the Customer;
6.3 Until title to any Hardware has passed to the Customer, the Customer undertakes:
6.3.1 to protect the Hardware against distress, execution, seizure or diligence at all times;
6.3.2 neither to sell or offer for sale, transfer, lease, dispose of, assign, mortgage, pledge, underlet, lend or otherwise deal with the Hardware or any interest in it, nor to allow the creation of any charge or lien over it, nor without the previous, written consent of Ethos, to attach the Hardware to any land or premise so as to cause it to become a permanent or immoveable fixture or a heritable fixture on such land or premise;
6.3.3 to insure the Hardware and keep the Hardware insured throughout the term of the Contract and thereafter until returned into the possession of Ethos for its full replacement value against all risks on a comprehensive policy without restriction or excess; and
6.3.4 to notify the Supplier without unreasonable delay of any loss of or damage to the Hardware.
6.4 On termination of the Contract, save as expressly provided otherwise hereunder, in respect of Hardware where title has not passed (or is not intended to pass) to the Customer:
6.4.1 the Customer shall without delay deliver up the Hardware, serviced and maintained and in good repair and working order together with all records, log books and handbooks in respect thereof, or (at Ethos’s election) Ethos may immediately enter into the premises at which the Hardware is held and repossess the Hardware together with all records, log books and handbooks in respect thereof;
6.4.2 in the event that the Customer does not deliver up the Hardware, the Customer shall pay to Ethos thereafter, on demand, all costs and expenses incurred by Ethos (and its agents or subcontractors) relating to the repossession of the Hardware; and
6.4.3 in the event that the Hardware, when received into the care of Ethos, has not been properly maintained and/or is not in good repair and/or working Quotation the Customer shall pay to Ethos all costs and expenses incurred by Ethos (and its agents and subcontractors) in bringing the Hardware to the standard required by clause 6.4.1, and if
Ethos is not able to repair the Equipment, the replacement cost of the Hardware.
6.5 In the event that Ethos exercises its rights provided under clause 8 so that Contract remains in force between Ethos and the Customer, the Supplier may at its sole option require the Customer to take the action and exercise its rights as provided under clause 6.4.1 to clause 6.4.3 as if this agreement had terminated.
6.6 Ethos grant to the Customer a limited licence right to use the Software for their own internal business purposes but for no other purpose whatsoever.
6.7 If Ethos arrange for the Customer either leased telecommunications lines, domain names, IP addresses or telephone numbers (“Communications Facilities”), the Customer shall gain no title to such Communications Facilities. The Communications Facilities are leased to the Customer for the Service Period.
The Customer acknowledges that Hardware and Software manufactured by persons other than Ethos and any Third Party Services are supplied by Ethos subject to the terms and conditions provided by those third parties and accompanying the Hardware, Software and Third Party Services. The Customer further acknowledges that the contract relating to such Hardware, Software and Third Party Services shall be between the Customer and such third party, but arranged by Ethos as agent for the Customer. Ethos make no warranties, guarantees or representations regarding such Hardware, Software or Third Party Services other than as expressly set out in the Contract. The Customer acknowledges and agrees that, other than as expressly set out in the Contract, that its rights and remedies in respect of any defect, fault or error in such Hardware, Software or Third Party Services shall be solely against the manufacturers or providers thereof and not Ethos.
If the Customer breaches any term of the Contract, in addition to its other rights and remedies Ethos may suspend its performance of the Contract or any part of it. In such an event Ethos shall not be liable for such suspension. Ethos’s rights of suspension include the right to suspend any licences or permissions given under or pursuant to the Contract.
The Customer shall ensure that all communications relating to the Contract are given by its Representatives, to Ethos’s Representatives. Each party may change its Representatives (or any of them) by notice to the other party. The Customer warrants that its Representatives shall be entitled to bind it.
The Customer shall meet with Ethos on the dates set out in the Contract at the Site, and otherwise upon reasonable notice by Ethos. Otherwise the parties shall meet upon such dates and such times as are agreed between the parties.
Other than in respect of the obligation to pay the Charges, no party shall be liable to the other party for any failure or delay in performing its obligations under the Contract where such failure or delay arises due to a Force Majeure Event. In the event of a Force Majeure Event arising, the affected party shall notify the other party as soon as reasonably possible, and use all reasonable endeavours to mitigate the effect of such Force Majeure Event.
12.1 The Customer warrants that it has full power and authority and has taken all necessary corporate action to enable it effectively to enter into and perform the Contract, and that the Contract constitutes valid, binding and enforceable obligations on the Customer in accordance with its terms.
12.2 Other than as expressly set out hereunder Ethos give no warranty, guarantee or representations in relation to the subject matter of the Contract and accordingly all warranties, guarantees or representations on the part of Ethos, other than as set out hereunder, are expressly excluded from the Contract. The Customer acknowledges that the Charges are set at a level reflecting such exclusion, and agree that such exclusion is reasonable in the circumstances.
13.1 Neither party excludes or limits liability for fraud, fraudulent misrepresentation, death or personal injury caused by their negligence, or any other liability that cannot be excluded or limited under law.
13.2 Subject to clause 13.1:
13.2.1 Ethos’s liability to the Customer shall be limited to an amount equal to the Charges paid to Ethos under the Contract.
13.2.2 Ethos shall not be liable to the Customer for any indirect, secondary or consequential loss, cost, expense or damage, for any loss of profits or revenue, loss of or damage to goodwill or reputation, loss of or damage to data, loss of business, loss of contracts, loss of use, or loss of anticipated savings.
13.3 The Customer acknowledges that the Charges are set at a level reflecting such exclusion, and agree that such exclusion is reasonable in the circumstances.
No right, title or interest in any intellectual property of a party is granted or given pursuant to the Contract except as expressly set out in the Contract. Ethos shall retain all rights in any intellectual property created by it (or on its behalf) in the process of, or by reason of, the supply of Services, or otherwise. This includes any intellectual property in any report, process, software or other item created by it or on its behalf.
15.1 If the Customer becomes subject to any of the events listed in clause 15.2, or Ethos reasonably believes that the Customer is about to become subject to any of them and notifies the Customer accordingly, then, without limiting any other right or remedy available to Ethos, Ethos may terminate the Contract by written notice to the Customer without incurring any liability to the Customer.
15.2 For the purposes of clause 15, the relevant events are: breach by the Customer of the Contract; the Customer suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due; the Customer admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or (being an individual) is deemed either unable to pay its debts or has having no reasonable prospect of so doing, in either case within the meaning of section 268 of the Insolvency Act 1986, or (being a partnership) has any partner to whom any of the foregoing apply; the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts or makes a proposal for or enters into any compromise or arrangement with its creditors; (being an individual) the Customer is the subject of a bankruptcy petition or Quotation; a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets; (being a company) an application is made to court or an Quotation is made for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Customer; (being a company) a floating charge holder over the assets of the Customer has become entitled to appoint or has appointed an administrative receiver; a person becomes entitled to appoint a receiver over the assets of the Customer or a receiver is appointed over the assets of the Customer; any event occurs or proceeding is taken with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in this clause 15.2; the Customer suspends, threatens to suspends, ceases or threatens to cease carrying on all of its business, substantially the whole of its business, or the part of its business to which the Services relate; (being an individual) the Customer dies or by reason of illness or incapacity (whether mental or physical) is incapable of managing his or her own affairs or becomes a patient under any mental health legislation; or a Force Majeure Event persists in excess of ten (10) Business Days.
15.3 Any termination of the Contract be without prejudice to any other rights or remedies a party may be entitled to hereunder or at law and shall not affect any accrued rights or liabilities of either party nor the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.
15.4 Upon the termination of the Contract for whatever reason the Customer’s right to receive the Services shall cease automatically; the Customer shall return to Ethos all confidential information of Ethos along with all Hardware and Software supplied to it; the Customer shall immediately pay to Ethos any sums due or payable under the Contract
(including for the avoidance of doubt any sums which would have been payable had the Contract continued in force for its originally anticipated duration); and all rights and licences granted or given to the Customer hereunder shall cease.
The Customer indemnifies and shall keep indemnified Ethos against all loss, cost, expense, claim or other liability arising by reason of the Customer’s wrongful or negligent act or omission, or breach of the Contract.
17.1 Each of Ethos and the Customer undertake to keep confidential all Confidential Information disclosed to it or to which it gains access, not disclose that Confidential Information to any person other than its employees or subcontractors directly and necessarily involved in the performance of the Contract (and then only under terms of confidentiality and non-use which accord with the Contract) and not use that Confidential Information other than to perform the Contract;
17.2 The provisions of clause 17.1 above shall not apply to Confidential Information that it is already in a party’s possession without restriction prior to the disclosure or grant of access to it by the other party, or Confidential Information which is in the public domain other than as a result of a breach of the Contract or any other agreement.
17.3 Nothing in this clause shall prevent or restrict a party from disclosing information when required by applicable law or a court of competent jurisdiction.
The Customer undertakes during the term of the Contract and for a period of one (1) year after termination of the Contract, that they shall not directly or indirectly canvass, solicit, interfere with or engage or endeavour to canvass, solicit or interfere with or engage Ethos’s staff who have been employed or engaged in the provision of the Services or the performance of the Contract. However, the Customer shall not be in breach of the foregoing restriction in the event that it engages such a staff member by reason only of that staff member having replied to a generic employment campaign organised by the Customer not targeted at the staff of Ethos.
19.1 In its provision of the Services Ethos shall adhere to all applicable laws, including the provisions of the General Data Protection Regulation.
19.2 Ethos may at any time assign, novate, transfer, charge, subcontract or otherwise deal in any other manner with all or any of its rights or obligations under the Contract without a requirement of prior notice to the Customer. The Customer may not assign, novate, transfer, charge, subcontract or otherwise deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of Ethos. Ethos’s rights and remedies under the Contract are in addition to its rights and remedies implied by statute and common law. Any provision the Contract which is intended either expressly or by implication to enter into upon or continue in force following the cancellation, termination or expiry of the Contract shall (as appropriate) enter into or continue in force accordingly.
19.3 In order to be validly served any notice or other communication given to a party under or in connection with the Contract is required to be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause and shall be delivered personally, sent by registered post or sent by commercial courier. A notice or other communication shall be deemed to have been received if delivered personally when left at the address referred to in this clause 19.3, or if sent by registered post two three (3) days after posting, or if sent by commercial courier on the date and at the time that the relevant delivery receipt is signed by or on behalf of the relevant party. The provisions of this clause 19.3 shall not apply to the service of any proceedings or
other documents in any legal action.
19.4 If any court or competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected. If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were modified, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
A waiver of any right or remedy of Ethos under the Contract is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by Ethos to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it
preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy by Ethos shall preclude or restrict the further exercise of that or any other right or remedy. A person who is not a party to the Contract shall not have any rights under or in connection with it. Any variation to the Contract, including the introduction of any additional terms and conditions, shall only be binding when agreed in writing and signed by authorised representatives of the parties.
19.5 Any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by and construed in accordance with Scots law, and in respect of the determination of which the parties submit to the exclusive jurisdiction of the courts of Scotland. Notwithstanding the foregoing Ethos shall be entitled to seek enforcement of any judgement of the courts of Scotland in such jurisdiction(s) as it may in its sole discretion determine.