Total Group International Ltd - Terms & Conditions
1 DEFINITION
1.1 In these terms and conditions, the following definitions will apply:
“Commencement Date” means the commencement date as set out in the Managed Service Agreement, and if there is none, the date on which Total Group begins to provide Services to the Client;
“Initial Period” means the initial period during which the contract term cannot be terminated which, if applicable, will be set out in the Managed Service Agreement;
“Services” means the services that Total Group supplies to the Client under these terms and conditions;
“Software” means the software program(s) (if any) to be developed or provided by Total Group as part of or incidental to the provision of the Services;
“Managed Service Agreement” means the written Managed Service Agreement agreed between the parties describing the Services;
“Term” means the duration of the contract between Total Group and the Client which shall begin on the Commencement Date and continue until terminated in accordance with these terms and conditions;
“Operating System Support” mean something that is designed by default to work within the Microsoft Windows or Mac operating system that was previously setup to work has stopped working.
“Agreement” means any arrangement between us and you (whether alone or in conjunction with another person) for Services and/or the provision of goods provided by us under an arrangement in connection with work agreed to be done or progressed for, or on behalf of you or any other person at your request, including as set out in the agreement and any corresponding proposal.
“Proposal” means a quote or proposal provided to you by us.
“Schedule of rates” means the charges and conditions for the services of our as set, and as may be varied, for time to time in our absolute discretion.
“Response Times” Response Time is measured as the difference between the time we are first notified of a new service request via the correct methods and the time that we start providing service on the service request. We do not count triage, scheduling or dispatch work when calculating response times.
"GDPR" means the General Data Protection Regulations. The Data Protection Act 2018 being the UK's implementation of this Regulation.
"RPI" means retail price index UK as published by the office of National Statistics.
“Service Request” means the provision of any services by us including work, advice and recommendations.
“Software” includes software and any installation, update, associate software and any services provided in connection with any of these things. #
“Onsite” includes the client’s premise or Total Groups premise.
1.2 The terms “Company” and “Client” shall have the meanings given to them in the Managed Service Agreement. Unless otherwise advised the term, Company means Total Group International Limited.
2 THE SERVICES
2.1 Total Group undertakes to carry out the Services during the term with reasonable care and skill, in accordance with the Managed Service Agreement, and subject to these terms and conditions.
2.2 Where Total Group is required to purchase hardware or software on behalf of the Client, advance payment will be required, unless otherwise agreed. Payment by credit card is accepted for this purpose. Hardware, software and other intellectual assets (such as computer code) will remain the property of Total Group until full and final payment is received by Total Group.
2.3 Total Groups working hours are UK 0900 to 17:30 Mon – Fri excluding Bank Holidays and the Christmas period, unless otherwise agreed or an Elite Managed Service Agreement is in place.
2.4 Total Group provide annual, quarterly or monthly payment terms for support contracts, but payment is due prior to the time period being supported. Direct Debit payment is required unless otherwise agreed in writing.
2.5 At the end of each term a new term agreement of 12 months will be established on full receipt of the required next month’s payment. Renewal payments may change. You must ensure you agree the correct payment amount with Total Group to ensure continuity as per the Agreement Authorisation with the Managed Service Agreement. If only part payment is received no active SLA will exist.
2.6 These Terms and Conditions are in addition to any specific terms set out in your managed service agreement.
2.7 Following the Initial Period (if any) set out in the managed service agreement, the Services shall continue to be provided to the Client until terminated by either party giving not less than 3 months’ notice in writing to the other.
3 HARDWARE AND OPERATING SYSTEM SOFTWARE MAINTENANCE AND FAULT DIAGNOSIS
3.1 When applicable and within reason, your company will be expected to assist with problem determination and analysis. This may be before an engineer attends site and is to aid in the timely resolution of the service request being logged.
3.2 In the event of a service request that requires the re-installation of operating system software and the restoration of data, Total Group is dependent upon the media and licensing being made available and adequate backups being taken. If Total Group is required to re-install a computer, these works will need to be scheduled and will be resolved as per your SLA.
3.3 Total Group do not routinely provide hardware warranty and warranty fulfillment is outside of this service level agreement. However, on request Total Group may assist our clients in accessing and using their manufacturer warranties. This is done on a best endeavor's basis. Manufacturer warranty repairs routinely take over 30 days and it is common for you to not get back the device you sent. It is critical that if you send a PC or Laptop for warranty repair that it is specifically backed up. Total Group accept no liability for data loss on data systems that we license and support. Under General Data Protection Regulations liability for data loss lies exclusively with the person with significant control and the most influence.
4 SUPPORTED PRODUCTS
4.1 The specific products that are supported are detailed in your managed service agreement Appendix C. If the physical or virtual device is not listed on your agent billing report or if an active subscription is not installed or paid for in full than the device is not supported.
4.2 Any peripheral or consumable items, such as printers, copiers, cartridges and data cartridges, etc, are specifically excluded from this agreement.
4.3 Total Group has no responsibility for third party software. Third party software is all software not included with the operating system installation. Examples of this software include but are not limited to on premise software like Sage accountancy, software as a service application like Salesforce and web applications that you may access via an internet browser.
4.4 Where possible Total Group will assist your third-party software providers and maintainers on a best endeavor basis. This may include minor change requests such as routine patching where software and clear instruction is made available to us. Any change request requiring more than 2 hours engineering is considered a major change and would be chargeable. The 3rd party provider however will remain liable for all changes in relation to their software. All business-critical software applications should be fully supported and maintained outside of this agreement. If an application is not supported or patched, you should expect it to fail and become inaccessible and unusable. It is no longer lawful or recommended to maintain unsupported legacy applications.
4.5 RESPONSE products cover telephone and remote operating system support only plus essential licensing. RESPONSE products are not fully managed services. RESPONSE products include security and an RMM agent, so products are routinely maintained and patched. Telephone or remote support is limited to 2 hours per incident before an onsite attendance is deemed appropriate. This is charged as per the schedule of rates.
5 MANAGED WI-FI
5.1 Support is only valid for devices that Total Group have supplied and installed. Devices supplied by third parties such as BT are not covered under your agreement.
5.2 Support is not included, and your agreement is void where equipment has been altered by anyone outside of Total Group.
5.3 Any works required for devices that Total Group have not supplied or that Total Group has supplied and have been altered by another party will be chargeable as per our schedule of rates.
6 VIRUS OUTBREAKS AND SECURITY BREACHES
6.1 In recent times, ransom attacks and hacking are undermining many traditional security and back up approaches. Operating PC’s and Servers without suitable security and anti-virus software is a critical risk to business and is deemed as misuse by Total Group Ltd. (refer to your Managed Service Agreement) It also invalidates hardware, software warranties and support contracts. Total Group routinely proactively push out antivirus, malware protection, patch and updates to discovered devices. Existing software and firewalls do not however provide protection against complex ransom attacks. Users of supported devices clicking on infected web pages, adverts, pop ups or attachments is deemed as clear misuse. Any works required to recover data will not be included in support contracts and excluded from the ‘all inclusive’ nature. All works associate with these issues will be billable as per engineering fees shown in our schedule of rates. If damage is isolated to a single PC operating system Total Group agree to reinstate a functional PC operating system. Claims requiring a rebuilt operating system following a virus or security breach will be limited to 1 PC per week, 1 instant per device per annum. So, if a user repeatedly damages and misuses their device future rebuilds will be chargeable.
7 TELEPHONE AND REMOTE SUPPORT
7.1 Total Group provides telephone and remote support for problems where a product is not believed to be operating as designed or documented. Something that was working and should work has stopped working.
8 HARDWARE EXCHANGE (only Valid where Hardware Swap out is included see Appendix C.)
8.1 If in the opinion of Total Group, the product thought to be faulty requires replacement in order to resolve the incident, then a replacement item will be provided by Total Group and installed in a timescale according to your SLA and depending on the agreed severity of the incident. This is subject to having the correct Managed Service Agreement in place – Refer to Appendix C in your Managed Service Agreement.
8.2 The replacement may not always be new but will be in good working order and at least functionally equivalent to the item it replaces.
8.3 If the replacement item or product is expected to take longer than five working days, the provider will lend the client temporary replacement equipment, at no extra cost, until the repair is complete.
8.4 Temporary loan equipment will be as compatible as is available at the time of repair; if it is covered by your managed service agreement, but always remains the property of Total Group. Your Company will be liable for any loss or damage, however caused, during the loan period.
8.5 In the event of replacement or temporary loan equipment being provided, Total Group will install and restore the necessary software and data to ensure that the replacement is fit for purpose.
9 COMPLIANCE
9.1 UK and EU law now defines a company’s "Data Controller" as the person with significant control and the most influence. This person is responsible in law for its company’s data and data systems and must ensure regulatory compliance.
This liability cannot be deferred or outsourced.
9.2 Total Groups licensing and proactive security, monitoring and maintenance is a core component to achieving data system compliance. However, neither Total Group or our systems alone are responsible for delivering compliance with such Standards as the Payment Card Industry Data Security Standard (PCI), Health Insurance Portability and Accountability Act (HIPPA) and General Data Protection Regulation (GDPR).
9.3 Total Group provides over 50 managed services and security solutions. Data controllers should never assume that a product or service adequately provides for their data system needs without a detailed understanding. Compliance usually involves procedure, process and training outside of the data system management remit. Omissions in support maintenance, security and backup remain your responsibility.
9.4 Total Group may agree to work on non-compliant systems as part of an agreed on-boarding or change process.
9.5 Total Groups minimum standards are set out in your managed service agreement. Total Group can aid our customers with this determination and assist with assessment of risk and compliance. These risk and compliance audits will be charged at rates as per our schedule of rates.
9.6 Many companies have the incorrect assumption that outsourcing parts of their IT provision mitigates them from security and data risks and defers liability, this is not the case. The Director must allocate sufficient resources to ensure that reasonable standards are achieved and maintained. In the UK these standards have been defined for digital data systems as Cyber Essentials and Cyber Essentials Plus. These standards are not mandatory, but they are key indicators of compliance and your IT systems will be judged based on these standards.
9.7 Total Group’s service level agreements require that their customers maintain compliant data systems.
9.8 Total Group provide a range of IT security, management and monitoring software on a subscription basis. Some products may include free telephone access to engineers to assist in the setup and use of the
specific software. Our Pro and Elite software bundles also include free access to phone, remote and onsite operating system support with agreed service levels.
10 LIMITATIONS
10.1 Compliance Limitations - Compliance can be achieved through the correct application of policy, process and people. Total Group cannot therefore deliver data system compliance, but our solutions are specifically tailored to contribute to data system compliance and are integral to companies achieving and maintaining compliance. We provide a software framework that combined with good policy, process and people will facilitate a compliant low risk digital data system.
10.2 Risk Limitations - Total Group cannot remove the risk of data loss and downtime, but they are integral to companies achieving a reduction in risk and maintaining IT uptime and productivity.
10.3 Total Group do provide a Disaster Response Product that can be purchased and used when disaster strikes, however PC and server support contracts otherwise exclude all works relating to a data system breach, including but not limited to hacks, ransom attacks, malware, viruses, phishing attacks and compromised credentials. These works are always chargeable and outside of our Managed Service Agreements.
11 EXCLUSIONS
CLAIMS FOR WHICH TOTAL GROUP ARE NOT RESPONSIBLE
Total Group has no obligation regarding any claim based on any of the following:
11.1 The modification of a Product, by your Company, damage by misuse, use in an operating environment other than that specified by the manufacturer and improper maintenance. Please note that misuse includes installing incorrect software versions, incorrect order of installation or maintaining legacy software. Legacy software is software no longer actively supported, maintained or patched by the vendor. Companies have a mandatory requirement to maintain data systems under the General Data Protection Regulation.
11.2 The combination, operation, or use of a product with other products or apparatus that have not been supplied or approved for use by Total Group.
11.3 Products supplied by Total Group being moved or relocated without the prior consultation and consent of Total Group.
11.4 Works associated (including data recovery) with issues arisen from Hardware failure or Misuse as stated in your managed service agreement.
11.5 Total Group and its affiliates are not responsible for and expressly disclaim all warranties of any kind with respect to third-party content, products, and services. Total Group International and its affiliates will not be responsible for any loss, costs, or damages incurred due to your access to or use of third-party content, products, or services.
11.6 Total Group take no liability for Third Party software. This includes its general functionality, patching, upgrading and reinstallation. Third party software is all software not part of the operating system installation. Examples of this software being on-premise software like Sage Accounts or web applications used via an internet browser or software as a service like Salesforce. Most software is deemed 3rd party software. All business-critical software applications should be fully supported and maintained outside of this agreement. You may lose the use of 3rd party applications if access to vendor support is not available.
11.7 Our engineers act under the guidance and direction of your Data Controller who remains the responsible person.
12 ADDITIONAL EQUIPMENT
12.1 With the agreement of both parties, additional equipment may be added to the agent billing report. Charges for this additional equipment shall be invoiced on a pro-rata basis, with a minimum charge of three months, up to the end of the current agreement period and incorporated in the total charge thereafter. A revised agent billing report showing the additional equipment shall be produced detailing any additional costs.
12.2 Connecting and maintaining rogue devices on your network without our compliant security patch and management is considered misuse. If devices are introduced to your network that do not have essential security software installed this represents a significant risk to your network and invalidates your support contract. To maintain the protection of your network, Total Group reserve the right to attempt to forcibly deploy critical security licensing and modify billing to reflect this. Our entry level security suite – IT Essentials has a cost implication as per our schedule of rates. If deploying this licensing is not possible, Total Group reserve the right to attempt to deny internet and network access for such devices.
12.3 New devices which have not been purchased through Total Group will incur a setup fee as per our schedule of rates plus postage if required, not including any possible software licensing required.
12.4 If the business wants to prevent additional licensing costs, they need to prevent new devices being introduced. If the devices are permanently removed, your company needs to notify us, so we can remove licensing and reduce billing accordingly.
13 OFFICE/ DESK MOVES
13.1 Office and Desk moves are excluded for all Total Groups service agreements. If these services are required Total Group will prepare a quotation based on your requirements. Total Group will not schedule works until full payment is received.
13.2 Total Group requires and recommends the following lead times:
DESK MOVES (up to 3 devices) – 72 hours
DESK MOVES (Over 3 Devices) – 2 weeks
OFFICE MOVES (Without a leased lines) – 1 Month
OFFICE MOVES (With a leased line) – 4 Months
14 CONFIDENTIALITY
14.1 Total Group operates and has published a GDPR compliant Data Protection Policy and Privacy Notice.
14.2 The Parties acknowledge their respective obligations arising under the DPA and GDPR and must assist each other as necessary to enable each other to comply with these obligations.
14.3 As a critical data system supplier and data processor for your business Total Group will routinely receive and sign data processing agreements from our customers. If this is required, please provide your Data Processing Agreement for our review. Total Group can provide a typical agreement template if required.
14.4 Each party undertakes to retain in confidence and make no use of, all information transmitted to it by the other party during the length of the Managed Service Agreement. This includes confidential or proprietary information or information that ought to be treated as such.
Both parties shall treat the terms and conditions of this agreement as confidential during the agreement period or five (5) years following termination.
14.5 Total Group agrees to keep all information disclosed to it in confidence and shall ensure that its employees adhere to the terms of this clause 13. The confidentiality obligation under this clause 13 shall not apply to the extent that information is: (i) required to be disclosed by any court of competent jurisdiction or competent regulatory body; (ii) or becomes public knowledge other than by a breach of the provisions of this clause 13; (iii) or becomes known by Total Group in a lawful manner; or (iv) permitted to be disclosed by the Client.
14.6 The Client agrees to allow Total Group to refer to it as one of Total Group’s clients or in other marketing undertaken by Total Group.
15 LIMITS OF LIABILITY
15.1 Total Group International operate Professional Indemnity to the value of £500,000.00. Total Group International operates Public and Products liability to the value of £2,000,000.00
16 RENEWAL AND INFLATION
16.1 At the end of the managed service agreement period a new term Subscription of 12 months will be automatically established on receipt of your next month’s payment but only if agreed by Total Group.
16.2 A Retail Price Increase (RPI) will be applied to your monthly IT Support contract value each year in May. Total Group International fixes RPI for the year based on the figure as published by the Office of National Statistics at the end of April in the same year plus 2%.
17 PAYMENTS
17.1 As part of this agreement numerous software applications critical to the operation of your systems may be supplied, delivered and maintained from enterprise providers on a software as a service subscription.
17.2 You must maintain your licensing subscriptions always or critical software will cease to operate, and you risk significant downtime and data loss. An active direct debit is always required to maintain your subscriptions and Total Group recommend that an active credit card also be supplied to back up your subscription payments to make sure payments are always met.
17.3 Total Group cannot provide licensing without payment and we cannot provide telephone, remote or onsite engineering without an active management subscription licence.
17.4 Non-payment of subscriptions will result in suspension of licensing and in turn disruption to services.
17.5 Total Group will invoice the Client and all prices exclude VAT, delivery and Installation, except where specified.
17.6 Outside of a support agreement, any Services provided by Total Group at the premises of the Client will be charged at a minimum of 2 hours’ work.
17.7 Support provided by Total Group in addition to services set out in the Managed Service Agreement, quotation or Support Agreement will be billed in line with our schedule of rates or as otherwise agreed between the parties.
17.8 Payments for all hardware and software purchased on behalf of our clients is due with order. The Client shall pay Total Group’s invoices immediately or as per the payment terms on the invoice.
17.9 Total Group reserves the right to charge the Client interest, calculated daily, in respect of the late payment of any sum due at the rate of 2% above the base rate of Lloyds Banking Group from the due date until paid.
17.10 Total Group reserves the right to cease (temporarily or permanently) to provide services at any time when Total Group’s invoices remain outstanding for more than 30 days.
17.11 Non-Payment of a support agreement will invalidate your agreement.
17.12 Travelling expenditure and time are chargeable separately.
18 CANCELLATIONS
18.1 We at Total Group believe that in order to transfer your services to alternate providers effectively, a period of 3 months is required. You agree to pay us the current Agreement fee multiplied by the number of months left in the current commitment term within 14 days of providing us notification of termination.
18.2 You agree that if you need to terminate your agreement before the end of the commitment term, notice is given in writing. A termination document must be signed and returned.
18.3 The 3 months’ notice period will commence on our receipt of the signed termination document. All Termination requests must be made in writing to: termination@totalgroup.co.uk
19 PROPOSALS AND QUOTATIONS
19.1 All proposals made by Total Group to the Client will be valid for one calendar month only, after which point they will be deemed to have been withdrawn, unless otherwise agreed by Total Group.
19.2 Manufactures' may withdraw promotions, models and change Managed Service Agreements without notice. We reserve the right to change our quotation accordingly.
19.3 The use of licences supplied as part of a hosted solution or term agreement is only valid under that agreement. Clients who continue to use licences supplied under these agreements will be in breach of the licence agreement. Software should be removed and uninstalled. In some instances, and by agreement the client may be able to purchase alternative licenses from Total Group to enable continued use.
19.4 All engineering costs on all-inclusive contracts are written off over 12 months directly proceeding.
Engineering time allocated to a cancelled support agreement will be recharged prorate as engineering time at the rates defined in our standard tariff.
19.5 Hardware and Software supplied in conjunction with any cancelled support agreement will be recharged to the client.
19.6 All loan equipment provided in conjunction with a support agreement must be returned. In some instances, and by agreement the Client may be able to purchase loan equipment from Total Group to enable continued use.
20 WARRANTIES
20.1 The Client warrants and undertakes to Total Group that any information, data, images or materials provided to Total Group will not infringe the intellectual property or other rights of any third party and all information provided will comply with the requirements of the General Data Protection regulation 2016/679 and the Client shall indemnify Total Group fully against all liabilities, costs and expenses which Total Group may incur as a result of any breach by the Client of this clause.
20.2 In all cases Total Group’s total liability in connection with each product or service shall not exceed the cost of that product or service. In respect of products and services procured monthly the liability shall not exceed the monthly cost.
20.3 The Client acknowledges and agrees that the allocation of risk contained within these terms and conditions is reflected in the Support Fee. Under the new GDPR legislation, the Data Systems Controller (CEO) now has exclusive liability in law for the data systems. Again outsourcing liability cannot be outsourced or referred.
20.4 Manufacturer’s standard Warranties may vary depending on products. Outside of your statutory rights under the “Sale of Goods Act 1979”, Total Group do not provide automatic warranty fulfillment. If you believe you have a claim, please first contact the Manufacturer directly to prove your claim. Warranty cannot be used where a product or service is found to not meet a Managed Service Agreement or a requirement unless the manufacturer has specifically advertised otherwise.
20.5 If an item is proven faulty then the Client may be entitled to a repair or direct replacement, as per the warranty agreement.
20.6 Total Group DOES NOT sell products on a trial basis.
20.7 Orders once placed with the manufacturer, distributor or reseller cannot be cancelled.
20.8 We may at our discretion and in exceptional circumstances, agree to cancel the order and accept the products back. We will do this in writing and provide you with a returns number that must be quoted on the returns. Such goods must be in the original condition. The packaging and seals must be intact. There will a 25% restocking and admin cost which will be deducted from any refunds. Carriage charges will not be refunded.
20.9 The Client must ensure that systems are of correct functionality and suitable for the purpose for which they are required before ordering. Any advice or recommendation given to the Client by Total Group which is not confirmed in writing is followed or acted upon entirely at the Clients own risk, and accordingly we shall not be liable for any such advice or recommendation. You must also refer to our minimum standards and Appendix D of the managed service agreement.
21 NON-SOLICITATIONS
21.1 Neither the Client nor Total Group will during the term and for 12 months after termination, without the other’s prior written agreement, directly or indirectly solicit or offer employment or engagement to any employee or contractor of the other party.
22 GENERAL TERMS
22.1 Total Group will not be liable for any act of ‘force majeure’, being a delay or failure to perform any of Services caused by events beyond its reasonable control.
22.2 The Client confirms that it has not relied on any verbal representations made by or on behalf of Total Group or upon any descriptions in any publicity material. It is agreed that the Managed Service Agreement and these terms and conditions shall together constitute the complete and exclusive statement of the contract between the parties relating to the services, together these supersede any previous communications or representations.
22.3 Unless specified herein, no change to these terms and conditions or the scope of the Services will be effective unless it is in writing and signed by persons authorised on behalf of both parties.
22.4 A waiver by either party for a breach of these terms and conditions shall not be construed as a waiver of any future breach of the same or other provisions. Any delay or omission on the part of either party to exercise any right to operate as a waiver of any breach or default by the other party.
22.5 These terms and conditions are construed in accordance with and governed by the law of England and each party agrees to submit to the exclusive jurisdiction of the courts of England.
22.6 These terms and conditions shall apply to all future work undertaken for the Client by Total Group unless specific agreement in writing is made by both parties.