STANDARD CUSTOMER TERMS
IT IS AGREED BETWEEN Commusoft Ltd. (the “Provider“) and the party accepting this Agreement (the “Customer”), each a “party” and together the “parties”, that the following terms and conditions shall govern the provision of the Services:
1. DEFINITIONS AND CONSTRUCTION
1.1 In this Agreement the following expressions shall apply (save where the context otherwise requires):
1.1.1 “Agreement” means this agreement, its appendices and the Order Form.
1.1.2 “Commencement Date” means the date this Agreement is entered into by all parties.
1.1.3 “Customer Data” means all data processed by Provider or provided to Provider for processing or otherwise processed as part of the Services including, but not limited to, data generated by the Website from visitor input.
1.1.4 “Customer Equipment” means the hardware and software which the Customer is required to have in use in order to use and enable the Services to be provided in accordance with this agreement.
1.1.5 “Data Protection Legislation” means, for such time as they are in force in England and Wales, the Data Protection Act 1998, the GDPR and all related legislation which may supplement, amend, implement or replace them and which relates to the protection of individual’s rights in their personal data and the protection of their privacy.
1.1.6 “Downtime” means a period during Service Hours during which there is total loss of the Services.
1.1.7 “GDPR” means Regulation (EU) 2016/679 and/or such legislation as may give effect to its terms in England and Wales.
1.1.8 “Initial Period” means the period of 12 months commencing on the Commencement Date.
1.1.9 “Intellectual Property Rights” means all copyrights, patents, database rights, registered and unregistered design rights, trademarks and service marks and applications for any of the foregoing, together with all trade secrets, know-how, rights to confidence and other intellectual and industrial property rights in all parts of the world and for the full term thereof including all rights to renew the same.
1.1.10 “Month” means a calendar month and “monthly” shall be construed accordingly.
1.1.11 “Order Form” means the document delivered to the Customer detailing the scope of the Services, Service Fee, number of permitted users, number of modules, Service Hours and client equipment specifications further to the terms of this Agreement.
1.1.12 “Outage” means an instance of Downtime.
1.1.13 “Proposal” means the proposal for the provision of services by Provider to the Customer as set out in the Order Form.
1.1.14 “Service Fee” means the fee detailed in the Order Form.
1.1.15 “Service Hours” means the hours during which the Services are to be provided as set out in the Order Form. References to “hour(s)” and “minute(s)” in this Agreement will, unless otherwise indicated, be taken only to refer to the elapse of time during Service Hours.
1.1.16 “Service Interruption” means a period during Service Hours during which there is partial loss of the Services.
1.1.17 “Service Levels” means the levels of performance to which the Services are to be provided to the Customer by Provider as set out in Appendix 1.
1.1.18 “Services” means the set-up, hosting, reporting and ongoing management of the Software as set out in more detail in the Proposal.
1.1.19 “Software” means Provider’s proprietary software used to provide the Services.
1.1.20 “System Management Regulations” means regulations introduced by Provider from time to time for the better management of the Services and which may include (but are not limited to):
188.8.131.52 defining minimum specifications for equipment used by the Customer to interface with the Services (including, but not limited to, routers, firewalls and PC’s);
184.108.40.206 regulations to ensure that the network through which the Services are provided are not overloaded and that the security and integrity of the network is maintained and including regulations which arise from the need to comply with regulations of any data centre facility engaged by Provider in connection with the Services; and
220.127.116.11 regulations to ensure that any database or other applications which form part of the Services are used to the best effect and within their capacities.
1.1.21 “Term” means the effective term of this Agreement.
1.1.22 “Website” means the website at www.commusoft.us
1.2 Clause, Appendix and paragraph headings shall not affect the interpretation of this Agreement.
1.3 A “person” includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.4 The Appendices form part of this Agreement and shall have effect as if set out in full in the body of this Agreement. Any reference to this Agreement includes the Appendices.
1.5 References to clauses and Appendices are to the clauses and Appendices of this Agreement.
1.6 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.7 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.8 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
1.9 A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.
1.10 A reference to writing or written includes fax and email.
1.11 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2. PROVISION OF SERVICES AND LICENCES
2.1 Provider agrees with effect from the Commencement Date in consideration of the payment of the Service Fee by the Customer to supply the Services on a non-exclusive basis upon the terms and conditions of this Agreement.
2.2 The Customer acknowledges that Provider may at any time, and without notice, incorporate licence management software into the Software for the purposes of ensuring that licence rights are not exceeded.
This Agreement shall commence on the Commencement Date and shall (subject to the provisions for termination set out in this Agreement) continue for the Initial Period and thereafter until terminated by either party giving to the other not less than 30 days’ notice in writing (any such notice to expire not earlier than the end of the Initial Period).
4. SERVICE FEE
4.1 The Customer undertakes to pay the Service Fee for the Services and additional fees to Provider for any other services provided by Provider, such charges to be based on Provider’s then current charging rates.
4.2 In the event that the conduct of the Customer causes Provider to incur unnecessary bank or administrative charges, Provider shall be entitled to charge the Customer the relevant fee set out in Appendix 2, with such fees being invoiced alongside the Service Fee. Provider has the right to amend Appendix 2 at its sole discretion, but shall give the Customer no less than 5 clear days’ notice of any such amendment taking effect.
4.3 In the event that the conduct of the Customer causes Provider to incur any unnecessary banking, or similar, fee as a direct result of its conduct other than as specified in Appendix 2, Provider shall be entitled to charge such costs to the Customer alongside the Service Fee.
4.4 Provider shall send to the Customer an invoice in respect of the Service Fee monthly in advance as set out in the Proposal.
4.5 The Service Fee covers the number of users and the number of modules turned on set out in the Order Form, any increase in the number of users or any change in the number of modules will result in a pro-rated increase. If such increase occurs during the course of a month, the remainder of that period as well as future months will be subject to the pro-rated increase.
4.6 All invoices are payable within 7 days after the date thereof unless otherwise agreed in writing.
4.7 Provider shall be entitled to charge the other interest in respect of the late payment of any sums due under this Agreement (as well after as before judgement) at the rate of 3 per cent per annum above the base rate from time to time of NatWest plc from the due date therefor until payment.
4.8 Provider shall be entitled to increase the Service Fee with effect from each anniversary of the Commencement Date by giving at least 30 days’ prior written notice to the Customer. Such increase measured as a percentage of the then current Service Fee shall not exceed 10 percent.
4.9 All sums due under this Agreement are expressed exclusive of Sales Ttax but will be subject to Sales tax which will be payable by the Customer. The Customer shall bear the costs of any and all other similar or analogous sales taxes, duties or levies that may become payable as a direct result of the supply of the Services to Customer.
5. SERVICE LEVELS
5.1 Provider undertakes with the Customer that it will use its reasonable endeavours to ensure that the Services and each component thereof will, subject to Clauses 10.1.2 and 14, be provided in all material respects to the levels of performance specified in the Service Levels save where otherwise expressly provided for by this Agreement.
6. OUTAGES, SERVICE INTERRUPTIONS AND CHANGES TO SERVICES
6.1 Outages or Service Interruptions may be made by Provider when in its reasonable opinion they are necessary to facilitate improvements to or maintenance of the Services. Provider will use reasonable endeavours to minimise the Outages or Service Interruptions that may be caused by a change.
6.2 If Outages or Service Interruptions are required under clause 6.1 (“Scheduled Interruptions”):
6.2.1 Provider will endeavour to schedule Scheduled Interruptions so as to minimise impact on the Services and will make reasonable endeavours to notify the Customer of the anticipated commencement time of the Scheduled Interruptions and its estimated duration.
6.3 Provider shall provide initial notice to the representative nominated by the customer by telephone, e- mail, pager or comparable notification service within 2 hours of Provider becoming aware of an event that has caused or may cause an unscheduled Outage. In the event the Customer first becomes aware of such event, the Customer shall promptly provide initial notice to Provider via customer support email listed in Appendix 1. Status reports about the event will continue at 2 hour intervals until either the event has been resolved or Provider and the Customer have agreed a course of action that does not require continued notification.
7. WARRANTIES AND INDEMNITIES
7.1 Provider warrants to and undertakes with the Customer that:
7.1.1 Provider will use its reasonable efforts to provide the Services and to exercise reasonable care and skill and in accordance with the terms of this Agreement;
7.1.2 Provider has full right power and authority to provide the Services to the Customer in accordance with the terms of this Agreement;
7.1.3 Provider has all requisite registrations under UK Data Protection Legislation and will maintain such registrations throughout the Term and will comply with the provisions of such legislation; and
7.1.4 Provider will at all times comply with Data Protection Legislation, including without limitation the obligations set out in Appendix 3.
7.2 Except for the express warranties set forth in this clause 7, the Services are provided on an “as is” basis, and the Customer’s use of the services is at its own risk. Provider does not make, and hereby disclaims, any and all other express and/or implied warranties, statutory or otherwise, including, but not limited to, warranties of merchantability, fitness for a particular purpose and any warranties arising from a course of dealing, usage, or trade practice. Provider does not warrant that the Services will be uninterrupted, error-free, or completely secure.
7.3 Provider does not and cannot control the flow of data to or from its network and other portions of the Internet. Such flow depends in large part on the performance of Internet services provided or controlled by third parties. At times, actions or omissions of such third parties can impair or disrupt connections to the Internet (or portions thereof). Although Provider will use commercially reasonable efforts to take all actions it deems appropriate to remedy and avoid such events, Provider cannot guarantee that such events will not occur. Accordingly, Provider disclaims any and all liability resulting from or related to such events.
8. CUSTOMER OBLIGATIONS AND WARRANTIES.
8.1 The Customer is required at all times during the term to maintain the Customer Equipment in good order and working condition and to provide prior written notification to Provider of any changes to the same. At no time during the Term shall the Customer permit the Customer Equipment to fall below the specifications therefor contained in the Order Form.
8.2 The Customer undertakes at all times during the Term to comply with all current System Management Regulations. Provider shall give not less than 14 days’ written notice to the Customer of additions and changes to System Management Regulations.
8.3 In the event that the Customer is in breach of any of its obligations under this Agreement, then:-
8.3.1 Provider cannot be held responsible should the Services fail to comply with the Service Levels as a result (directly or indirectly) of such Customer breach and no service credits will accrue on account thereof;
8.3.2 Provider shall be entitled to charge the Customer for staff time engaged on rectifying any resulting problems at Provider’s then current standard charging rates; and
8.3.3 Provider may without any liability terminate or suspend support in relation to the Services without prejudice to any pre-existing rights and obligations of either party.
8.4 The Customer represents, warrants and undertakes that:
8.4.1 it has and shall during the Term have the legal right and authority to place and use and have used any of its equipment as contemplated under this Agreement;
8.4.2 it will use the Services only for lawful purposes and in accordance with this Agreement;
8.4.3 any software, data, equipment or other materials provided by the Customer to Provider or employed by the Customer in its use of or receipt of the Services shall not infringe any Intellectual Property Rights of any third party and shall not be obscene or defamatory of any person and shall not violate the laws or regulations of any state which may have jurisdiction over such activity; and
8.4.4 it will comply at all times with Data Protection Legislation, and the obligations set out in Appendix 3.
8.5 The Customer shall provide all such assistance, facilities and information to Provider as Provider may reasonably require in order to enable it to carry out its obligations under this Agreement.
8.6 In the event of any breach of any of the foregoing representations or warranties, in addition to any other remedies available at law or in equity, Provider will have the right to suspend immediately any related Services if deemed reasonably necessary by Provider to protect the proper interests of Provider or its other customers. If practicable and depending on the nature of the breach, Provider may (in its absolute discretion) give the Customer an opportunity to cure. In such case once the Customer has cured the breach, Provider will promptly restore the Service(s).
9.1 Each party recognises that it is impossible to maintain flawless security but (where relevant) the Provider shall take all reasonable steps to prevent security breaches in its servers’ interaction with the Customer and security breaches in their interaction with resources or users outside of any firewall that may be built into Provider’s servers.
9.2 The Customer is responsible for maintaining the confidentiality of any passwords which are required to access the Software and the Services and is solely responsible for any damage caused by any such unauthorised access.
10. LIMITATION OF LIABILITY
(CUSTOMER’S ATTENTION IS IN PARTICULAR DRAWN TO THE PROVISIONS OF THIS CLAUSE).
10.1 Except as expressly stated in Clause 10.2:
10.1.1 Provider’s liability, whether under this Agreement or any collateral contract, for loss of or damage to the Customer’s tangible property caused by the negligence of Provider, its officers, employees, contractors or agents, shall not exceed a sum equal to twice the Service Fee.
10.1.2 Provider shall have no liability for any losses or damages which may be suffered by the Customer (or any person claiming under or through the Customer), whether the same are suffered directly or indirectly or are immediate or consequential, and whether the same arise in contract, tort (including negligence) or otherwise howsoever, which fall within any of the following categories:
10.1.2.1 special damage, even though Provider was aware of the circumstances in which such special damage could arise;
10.1.2.2 loss of profits;
10.1.2.3 loss of anticipated savings;
10.1.2.4 loss of business opportunity;
10.1.2.5 loss of or goodwill;
10.1.2.6 loss of or damage to data; provided that this Clause 10.1.2 shall not prevent claims for loss of or damage to the Customer’s tangible property that fall within the terms of Clause 10.1.1 or any other claims for direct financial loss that are not excluded by any of categories set out in Clauses 10.1.2.1 -10.1.2.6 inclusive of this Clause 10.1.2.
10.1.3 to the extent that not excluded by Clauses 10.1.1, 10.1.2, 10.3, 10.4, 10.5 or otherwise, the total liability of Provider, whether in contract, tort (including negligence) or otherwise and whether in connection with this Agreement or any collateral contract, shall in no circumstances exceed in aggregate a sum equal to the Service Fee payable by the Customer during the Initial Period or any subsequently agreed service fee for a subsequent period during which the liability arises.
10.1.4 the Customer agrees that, in entering into this Agreement, either it did not rely on any representations (whether written or oral) of any kind or of any person other than those expressly set out in this Agreement or (if it did rely on any representations, whether written or oral, not expressly set out in this Agreement) that it shall have no remedy in respect of such representations and (in either case) Provider shall have no liability otherwise than pursuant to the express terms of this Agreement;
10.2 The exclusions in Clause 10.1 shall apply to the fullest extent permissible at law but Provider does not exclude liability for:
10.2.1 death or personal injury caused by the negligence of Provider, its officers, employees, contractors or agents; or
10.2.2 fraud or fraudulent misrepresentation; or
10.2.3 breach of the obligations implied by Section 12 Sale of Goods Act 1979 or Section 2 Supply of Goods and Services Act 1982; or
10.2.4 any other liability which cannot be excluded by law.
10.3 Provider shall not be liable for any loss or damage of whatsoever nature suffered by the Customer arising out of or in connection with any act, omission, misrepresentation or error made by or on behalf of the Customer or arising from any cause beyond Provider’s reasonable control.
10.4 The Customer accepts that Provider is in no way liable for any virus or other contaminants which enter the Customer’s email system or computer network via email.
10.5 Provider shall not be liable for any interruptions to the Services or Outages arising directly or indirectly from:-
10.5.1 interruptions to the flow of data to or from the internet;
10.5.2 changes, updates or repairs to the network or the Software subject to Provider striving to minimise the interruptions/outages that may be caused by such change;
10.5.3 the effects of the failure or interruption of services provided by third parties;
10.5.4 factors set out in Clause 14;
10.5.5 any actions or omissions of the Customer (including, without limitation, breach of the Customer’s obligations set out in this Agreement or the Proposal) or any third parties;
10.5.6 Problems with the Customer’s equipment and/or third party equipment;
10.5.7 interruptions to the Services requested by the Customer.
10.6 The Customer agrees that it is in a better position to foresee and evaluate any loss it may suffer in connection with this Agreement and that the Service Fee has been calculated on the basis of the limitations and exclusions in this Clause 10 and that the Customer will effect insurance as is suitable having regard to its particular circumstances and the terms of this Clause 10
11. INTELLECTUAL PROPERTY RIGHTS
11.1 Without prejudice to the Customer’s rights in its own materials, the parties hereby agree that the Customer shall not acquire any Intellectual Property Rights whatsoever in respect of the Software, documentation and other materials used by Provider in connection with or related to the provision of the Services hereunder.
11.2 Provider warrants that it has all necessary right, title and interest to enable the Customer to benefit from the Services in accordance with this Agreement.
11.3 The Customer hereby grant to Provider:
11.3.1 A non-exclusive, royalty-free, world-wide licence during the Term to use, copy, reproduce, and manipulate data provided by the Customer or resulting from the Services for the purposes of using the data for the provision of the Services; and
11.3.2 A non-exclusive, royalty-free, world-wide licence during the Term to use, reproduce and display the Customer’s trade marks for the purposes of using the data for the provision of the Services.
11.4 Subject to any contrary provision in this Agreement, Provider undertakes only to use the Customer’s trade marks for the purpose of providing the Services.
12.1 For the purposes of this clause 12, the following events shall be deemed “acts of default”:
12.1.1 if the Customer fails to pay any moneys due pursuant hereto within 7 days of the due date therefor;
12.1.2 if a party commits any material breach of any term of this Agreement (other than one falling under clause 12.1.1 above) and which, in the case of a breach capable of being remedied, shall not have been remedied within 30 days of a written request by the other party to remedy the same;
12.1.3 if a party shall convene a meeting of its creditors or if a proposal shall be made for a voluntary arrangement within Part I of the Insolvency Act 1986 or a proposal for any other composition scheme or arrangement with or assignment for the benefit of its creditors or if the other shall be unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or if a trustee, receiver, administrative receiver, administrator or liquidator or similar officer is appointed in respect of the other party or all or any part of its business or assets or if a petition is presented or a meeting is convened for the purpose of considering a resolution or other steps are taken for the winding up of the other party or for the making of an administration order (otherwise than for the purpose of an amalgamation or reconstruction) or if any analogous step is taken in any jurisdiction.
12.2 If the Customer commits an act of default then Provider may:
12.2.1 Forthwith suspend the provision of the Services hereunder (or any of them or any part of them) and no such suspension shall be deemed a breach of any term or provision of this Agreement or give rise to any service credits; or
12.2.2 Terminate this Agreement by notice in writing forthwith.
12.3 Provider shall have the right, without prejudice to its other rights or remedies, to terminate this Agreement immediately by notice to the Customer if the Customer:
12.3.1 undergoes a change of control which does not result in control passing to a company that, immediately prior to the change in question, was an affiliate of the Customer; or
12.3.2 sells all of its assets or is merged or re-organised in circumstances where it is not the surviving entity; or
12.3.3 disputes the ownership or validity of Provider’s Intellectual Property Rights.
12.4 If Provider commits an act of default then the Customer may terminate this Agreement by notice in writing forthwith.
12.5 Any termination of this Agreement for any reason shall 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.
12.6 In the event that this Agreement is terminated by Provider under this clause 12 then the Customer shall pay Provider a sum by way of agreed and liquidated damages for Provider’s losses and damages by reason thereof such sum being equal to 100% for each Month or part of a Month between the date of such termination and the earliest date on which this Agreement could have expired or been terminated by the Customer in accordance with clause 3.
12.7 In the event of termination of this Agreement:-
12.7.1 the Customer agree promptly to pay to Provider all outstanding payments;
12.7.2 Provider’s entitlement to use the Customer’s trade marks ceases immediately except as necessary for the provision of any post-termination services;
12.7.3 Provider may in its sole discretion agree to provide any assistance reasonably requested by the Customer in connection with the hand-over to a third party of any services provided by Provider hereunder, and the Customer shall pay Provider in accordance with its then current standard rates for any such assistance.
12.7.4 the Customer’s right to receive the Services shall cease automatically;
12.7.5 each party shall immediately return to the other all property and materials containing Confidential Information (as defined in Clause13) belonging to the other.
12.8 Any termination of this Agreement (howsoever occasioned) shall not affect any accrued rights or liabilities of either party, nor shall it affect the coming into force or the continuance in force of any provision of this Agreement which is expressly, or by implication, intended to come into force or continue in force on or after that termination.
13. CONFIDENTIALITY AND OWNERSHIP OF CUSTOMER DATA
13.1 Subject to Clause 13.3, each party receiving information pursuant to this Agreement (“Receiving Party”) shall, during the term of this Agreement and thereafter, keep confidential, and shall not use for its own purposes, nor without the prior written consent of the other party (“Disclosing Party”) disclose to any third party, any and all information of a confidential nature (including trade secrets and information of commercial value) that may become known to the Receiving Party and which relate to the Disclosing Party or any of its Affiliates (“Confidential Information”).
13.2 Provider hereby undertakes not without the Customer’s written consent disclose the Customer Data in whole or in part to any other person save those of its employees agents and sub-contractors involved in the provision of the Services and who have, and to the extent that they have, a need to know the same; and
13.3 The provisions of Clause 13.1 above shall not apply to the whole or any part of the Confidential Information to the extent that it is:
13.3.1 trivial or obvious;
13.3.2 already in the Receiving Party’s possession without duty of confidentiality on the date of its disclosure to it by the Disclosing Party;
13.3.3 in the public domain other than as a result of a breach of this clause; or
13.3.4 to the extent that disclosure of such information may be required by any governmental agency or by operation of law and, in either such case, the Receiving Party required to make such disclosure shall, unless legally precluded from doing so, use reasonable endeavours to notify the Disclosing Party of such requirement prior to making the disclosure.
13.4 Each of Provider and the Customer hereby undertakes to the other to make all relevant employees agents and sub-contractors aware of the confidentiality of the Confidential Information and the provisions of this Clause 13.
13.5 For the avoidance of doubt, all Customer Data shall remain at all times the exclusive property of the Customer and may only be used by Provider in order to fulfil its obligations pursuant hereto.
13.6 Provider reserves the right to use all or part of any program, services or materials produced for or acquired on behalf of the Customer for demonstrating its expertise to potential clients, subject always to the provisions of this Clause 13.
13.7 The provisions of Clause 13 shall remain in full force and effect notwithstanding any termination of this Agreement.
14. FORCE MAJEURE
14.1 Neither party hereto shall be liable for any breach of its obligations hereunder, except in respect of payment, resulting from causes beyond the reasonable control of the party in default (or its sub-contractors) including but not limited to act of God, war, insurrection, riot, civil commotion, Government regulation, embargo, explosion, strike, labour dispute, illness, flood, fire or tempest (an “Event of Force Majeure”). Any time limit or estimate for a party to perform any act hereunder shall be suspended during an Event of Force Majeure.
14.2 Each of the parties hereto agrees to give notice forthwith to the other upon becoming aware of an Event of Force Majeure such notice to contain details of the circumstances giving rise to the Event of Force Majeure.
14.3 If a default due to an Event of Force Majeure shall continue for more than 30 days then the party not in default shall be entitled to terminate this Agreement. Neither party shall have any liability to the other in respect of the termination of this Agreement as a result of an Event of Force Majeure but such termination shall not affect any pre-existing rights or obligations of either party.
The waiver by either party of a breach or default of any of the provisions of this Agreement by the other party shall not be construed as a waiver of any succeeding breach of the same or other provisions nor shall any delay or omission on the part of either party to exercise or avail itself of any right, power or privilege that it has or may have hereunder operate as a waiver of any breach or default by the other party.
Any notice request instruction or other document to be given hereunder shall be delivered or sent by first class post, email or by facsimile transmission (such email or facsimile transmission notice to be confirmed by letter posted within 12 hours) to the address or to the facsimile number of the other party set out in this Agreement (or such other address or numbers as may have been notified) and any such notice or other document shall be deemed to have been served (if delivered) at the time of delivery and (if sent by post) upon the expiration of 48 hours after posting and (if sent by facsimile transmission or email) upon the expiration of 12 hours after dispatch.
|NOTICES TO||FACSIMILE NUMBER|
|Providerfirstname.lastname@example.org||(0)203 0266 266|
No announcement or information concerning this Agreement or any ancillary matter shall be made or released or authorized to be made or released in any advertising publicity promotional or other marketing activities by either of the parties without the prior written consent of the other party.
18. INVALIDITY AND SEVERABILITY
If any provision of this Agreement shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable the invalidity or unenforceability of such provision shall not affect the other provisions of this Agreement and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect. The parties hereby agree to attempt to substitute for any invalid or unenforceable provision a valid or enforceable provision which achieves to the greatest extent possible the economic legal and commercial objectives of the invalid or unenforceable provision.
19. ENTIRE AGREEMENT
19.1 Subject to clause 19.2, this written Agreement (including the Appendices), the Order Form and the Proposal constitute the entire agreement between the parties hereto relating to the subject matter hereof. In entering into this Agreement neither party has relied on any representation made by the other party unless such representation is expressly included herein. Nothing in this clause 19.1 shall relieve either party of liability for fraudulent misrepresentations and neither party shall be entitled to any remedy for either any negligent or innocent misrepresentation except to the extent (if any) that a court, arbitrator or expert appointed under clause 23 may allow reliance on the same as being fair and reasonable.
19.2 No change, alteration or modification to this Agreement shall be valid unless digitally agreed by both parties.
This Agreement shall be binding upon and enure for the benefit of the successors in title of the parties hereto.
The Customer shall not be entitled to assign this Agreement nor all or any of its rights and obligations hereunder.
Provider shall be entitled to sub-contract the whole or any part of its obligations hereunder to any third party but shall remain liable as if it were performing the Services itself.
23.1 All disputes or differences which shall at any time hereafter arise between Provider and the Customer in respect of the construction or effect of this Agreement or the rights duties and liabilities of the parties hereunder or any matter or event connected with or arising out of this Agreement (a ‘Relevant Event’) shall be referred to such independent third party (the ‘Third Party’) as Provider and the Customer shall jointly nominate.
23.2 If Provider and the Customer shall fail to nominate a Third Party within 14 days of the date of occurrence of the Relevant Event then the Third Party shall be nominated at the request of either Provider or the Customer by the President for the time being of the British Computer Society.
23.3 The Third Party shall act as an expert and not as an arbitrator whose decision (including as to costs) shall except in the case of manifest error, be final and binding upon Provider and the Customer.
24. THIRD-PARTY RIGHTS
No term of this Agreement is intended to confer a benefit on or to be enforceable by, any person who is not a party to this Agreement.
This Agreement shall be governed by and construed in accordance with English law and (subject always to clause 23) the parties submit to the exclusive jurisdiction of the courts of England and Wales.
Services and Service Levels
Part I – Services
Purpose and Scope
This document defines the specific services for the Client that Provider will provide and describes the Services to be provided all as more specifically described in this Appendix below:
a. Client Support:
b. Backup Services:
The client service help desk will be available to accept and work on support calls and emails received from the Client between the hours of [09:00 am and 5: 00 pm] Monday to Friday excluding U.S Public Holidays. Times specified are U.S Central Time. Calls may be made to 872.212.3118. Alternatively, emails may be sent to email@example.com.
The Software will be available to the Client for a minimum of 95% of the Service Hours. The percentage of online availability will be calculated on a monthly basis, and will be a reflection of the availability of the Services over the total number of “Service Hours” for the month.
Provider will ensure that backups are performed in accordance with the following table:
|Daily (7 days)||Incremental|
Execution times for backups will be monitored for adherence to these times.
Recovery times for System Failures
Complete System Failure – where it is necessary to completely rebuild the server – within 8 hours of the fault being first fully reported to Provider by the Customer.
System Failure – where a single element can be replaced with a functioning one, without the need to reboot the Server – within 4 working hours of the fault being first fully reported to Provider by the Customer.
Housekeeping tasks will be performed between the hours of 18:00 and 06:00.
Server Operating System Patches & Upgrades
Server operating system patches and upgrades will only be applied to the Server, should they be required to ensure continued support by the operating system vendor.
Application upgrades, patches and hot-fixes will be applied the to the server should they be required and at the discretion of the Vendor.
Penalties incurred due to failure to meet terms of SLA
Failure to sustain a 95% availability – 5% of the monthly fee will be credited from the following month’s charges.
Total Systems Failure
For each Failure to recover from a Total Systems Failure within 24 hours, 5% of the monthly fee will be credited from the following months charges.
For each Failure to meet the ‘Maximum Target Time of Plan for resolution or circumvention’, 5% of the monthly fee will be credited from following month’s charges.
Client Support Response Times
Provider shall provide the following response times during business hours to communications received via the following channels:
Telephone calls to the Provider Client Support Number will be answered within 60 minutes. During the telephone call, if a resolution cannot be provided over the phone, details of the incident and contact information will be taken from Client, a service request will be raised, and the service request number will be given to Client. The service request will then be assigned to an appropriate support analyst, and work shall commence within the times specified in the table below, from the time that the priority is assigned to the ticket.
Notifications to Client services submitted via the Provider “Client Support” web page, and emails sent to the Provider Client support email address will be responded to within 2880 minutes of receipt. Details of the incident and contact information will be taken from the submitted query, a service request will be raised, and the service request number will be returned to Client in the response. The Provider will only provide support to email addresses registered to a Commusoft user.
In each case, Provider will assign the appropriate level of priority and an appropriate support analyst to the service request, and Provider shall use its reasonable endeavours to ensure that work shall commence within the times specified in the table below.
|The call will be addressed by support analyst within||1 hour||4 hour||48 hour||7 days|
|Progress reporting||As agreed||As agreed||As agreed||As agreed|
Maximum target for provision of plan for resolution or circumvention
Provision of temporary fix
Next minor release
Next major release
Provision of permanent fix
Next minor release
Next major release
Subsequent major release
A “Temporary Fix” is an acceptable temporary work around the issue which allows the Services to be provided without substantial degradation in performance. A temporary fix can include changing back to a previous version of software. Such a fix will only be implemented with the agreement of Client’s Representative.
A “Permanent Fix” is a permanent resolution of the issue which restores the Services to optimum level.
A.S.A.P. Means in such reasonable time as is reasonably physically and technically possible with due regard for the severity and complexity of the issue and the integrity of the solution.
Priority is a measure based on Provider’s assessment of the impact and severity as set out in the following section, and dictates the response that the event will receive.
“Next Major Release” means the next planned major version change to the software in which the development schedule hasn’t been finalised.
“Next Minor Release” means the next planned minor version change to the software in which the development schedule hasn’t been finalised.
Classification of Support Priorities
A major issue which prevents the Software or a part thereof from being run and/or cripples the Software or a part thereof or causes severe performance degradation; causes a halt to the operation of important tasks by Client or places the operation of such tasks at risk.
For example: failure of a major feature; severely degrades a user application where no alternative exists; causes a delay in a time critical implementation; or causes any damage to the Data.
A major issue, which prevents the user from completing a time critical task, or sufficiently reduces performance of a particular primary feature.
For example: failure of a primary feature isolated to a particular action, control, button, icon or function which hinders users from completing a particular task.
A major problem with the running of the Software or any failure of the Software to perform in accordance with and provide the facilities, functions and capacity previously available to the user, (other than a major issue) which causes disruption to normal working.
For example: Loss of key reports resulting in information having to be sourced by other means.
A minor inconvenience causing minor disruption to the users normal working.
For example : Non critical information delayed or hidden from the user or poor performance of secondary features.
Minor issues which do not effect everyday workings of the system, and/or are not critical to the user (especially where workarounds are available, or can be easily ignored) shall be considered to be Low Priority.
If it’s apparent to the Provider that the ticket needs to be escalated, we will escalate it within these time scales:
1) Client services team notified
2) Technical services team notified
Issues will be escalated based on elapsed time and priority.
Escalation level 1
When ticket is logged
Escalation level 2
Reports and Service Level reviews
Provider will use industry standard tools to monitor and automatically report on the levels of service that are being delivered to the Client. The reports will include statistics on Network, application and support queries.
Non-specified performance standard
Where an element of the Services is not the subject of a performance standard described below then it shall be supplied by Provider to Client to a reasonable care and skill in accordance with the general duties and obligations of Provider pursuant to this agreement.
For the purposes of determining whether a service credit is due and, subject to the Tolerances, the formulae set out below will be used. Unless indicated otherwise, the measurement of each level will be based on the Service Hours and on a monthly basis, the first such period running from the start of the first calendar month after the Commencement Date. The maximum level of service credit against any one month’s Fee will be 100% percent. For service credit to be applied, a written request for service credit must be received by the Provider.
The following symbols will have the following meanings:
> more than
< less than
|Service Level||Service Credit Trigger||Level of Service Credit|
|Software Uptime||> 5 percent downtime of Service Hours||5 percent off following month’s
|Resolution of a reported problem||Failure to do so within “maximum target time of plan for resolution or circumvention”||5 percent off following month’s Fee|
|Repeatedly changing banking details over a short period of time in a fashion considered unreasonable by Provider||£[10.00] + VAT|
Causing an arranged direct debit payment to fail as a result of insufficient funds, or any other reason
£[10.00] + VAT
Data Protection Provisions
1. Data Protection
1.1. For the purpose of this Appendix, in addition to the definitions set out in the main body of this Agreement, the following terms shall have the following meanings:
1.1.1. Data Controller: shall have the meaning of ‘data controller’ set out in section 1(1) of the DPA and, from the time of its implementation into law in England and Wales the meaning set out in Article 4(7) of the GDPR or the equivalent clause of such legislation which may implement the same in the UK.
1.1.2. Data Processor: shall have the meaning of ‘data processor’ set out in section 1(1) of the DPA and, from the time of its implementation into law in England and Wales the meaning of ‘processor’ set out in Article 4(8) of the GDPR or the equivalent clause of such legislation which may implement the same in the UK.
1.1.3. Data Subject: an individual who is the subject of Personal Data.
1.1.4. DPA: means the Data Protection Act 1998.
1.1.5. EEA: means the European Economic Area and also includes the United Kingdom whether or not it is a member of the European Economic Area.
1.1.6. Personal Data: has the meaning set out in section 1(1) of the DPA and, from the time of its implementation into law in England and Wales the meaning set out in Article 4(1) of the GDPR, and for the purposes of this Agreement means Personal Data provided by one party to this Agreement to the other.
1.1.7. Processing and Process: have the meaning set out in section 1(1) of the DPA and, from the time of its implementation into law in England and Wales the meaning of ‘processor’ set out in Article 4(2) of the GDPR.
2. Processor’s obligations
2.1. The Customer and the Provider agree that for the purposes of Data Protection Legislation that the Customer shall be the Data Controller and the Provider shall be the Data Processor in respect of any Personal Data which is transferred from the Customer to the Provider under the terms of this Agreement.
2.2. As a Data Processor the Provider shall Process the Personal Data only to the extent necessary to perform its obligations pursuant to this Agreement and/or in accordance with the Customer’s instructions from time to time, and shall not Process the Personal Data for any purpose other than enabling it to fulfil its obligations pursuant to this Agreement or to perform any other activity which may be authorised by the Customer from time to time.
2.3. Where a party is a Data Processor pursuant to this Agreement it shall take steps to ensure that its employees or agents are informed of its obligations in relation to Personal Data that they hold.
3. Data Protection Warranties
3.1. Each party warrants to the other that it will Process the other’s Personal Data in compliance with all applicable Data Protection Legislation.
3.2. Where a party to this Agreement becomes a Data Processor pursuant to it, it warrants that in relation to the Personal Data in respect of which it is a Data Processor that:
3.2.1. having regard to the reasonably available state of the art of technological development, the nature of the Processing in question, the cost of implementation, and the material risk to the rights of affected Data Subjects, the Data Processor shall take appropriate technical and organisational measures to secure relevant Personal Data against the unauthorised or unlawful Processing and against accidental loss or destruction;
3.2.2. it will not transfer Personal Data outside the EEA without ensuring that appropriate safeguards are in place and that any transfer is lawful under all applicable Data Protection Legislation;
3.2.3. it will assist the Data Controller, insofar as reasonably possible, in responding to any requests made by any relevant Data Subject which concern the exercise of that Data Subject’s rights under the GDPR, subject to the Customer reimbursing it for the cost of the same;
3.2.4. it shall report to the Data Controller any suspected data breach concerning the Personal Data which comes to its attention and shall provide reasonable assistance to the Data Controller in informing the relevant regulator and/or affected Data Subjects, subject always to the Customer reimbursing it for the cost of the same; and
3.2.5. it shall, on request, take reasonable steps to demonstrate to the Data Controller, to the extent that is reasonable given the nature of the Processing in question, that it complies with Data Protection Legislation.
4.1. Each party agrees to indemnify and keep indemnified and defend at its own expense the other party against all costs, claims, damages or expenses incurred by the other party or for which the other party may become liable due to any failure by the first party or its employees or agents to comply with any of its obligations pursuant to clauses 2 and 3 of this Appendix. In order to avail itself of this indemnity the claiming party must: promptly notify the indemnifier of any relevant claim of which the indemnified party becomes aware; not make any admission of liability or offer to settle in respect of any relevant claim without the prior written permission of the indemnifier; grant the indemnifier full control of all relevant proceedings on request and; provide the indemnifier with such assistance in dealing with such claims as it may reasonably request.
4.2. The parties acknowledge that to the extent that either party is a Data Processor pursuant to this Agreement it will be reliant on the other, the Data Controller, for direction as to the extent to which the Data Processor is entitled to use and Process the relevant Personal Data. Consequently, the Data Processor will not be liable to the Data Controller for any loss or damage which arises from any claim brought by a Data Subject or any fine levied by any relevant regulatory authority which results from any action or omission by the Data Processor, to the extent that such action or omission resulted directly from the Data Controller’s instructions.
5. Appointment of sub-contractors
The Data Processor may not authorise any third party to process Personal Data provided by the Data Controller without first obliging them to treat that Personal Data to the same standard as it is obliged to do so. Where the appointment of any such third party is made in specific furtherance of an objective specified by the Customer, the Provider shall endeavour to inform the Customer of the identity of the third party controller.