Software As A Service Agreement

Background

• The Supplier has developed certain software applications and platforms which it makes available to subscribers via the internet on a pay-per-use basis.
• The Client wishes to use the Supplier’s service in its business operations.
• This Agreement (as defined below) is intended to be a framework agreement, such that once entered into on the Commencement Date, these terms and conditions will apply to each subsequent Quote entered into between the Parties.

Agreed terms

1. Interpretation

1.2 Clause, schedule and paragraph headings shall not affect the interpretation of this agreement.

1.3 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality).

1.4 A reference to a company includes any company, corporation or other body corporate, wherever and however incorporated or established.

1.5 Unless the context otherwise requires, words in the singular includes the plural and in the plural includes the singular.

1.6 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this agreement.

1.7 A reference to a statute or statutory provision includes all subordinate legislation made as at the date of this agreement under that statute or statutory provision.

1.8 A reference to writing or written includes email.

1.9 References to clauses and schedules are to the clauses and schedules of this agreement; references to paragraphs are to paragraphs of the relevant schedule to this agreement.

1.10 This Agreement shall (i) be in substitution for any prior oral or other prior arrangements between the Supplier and the Client in connection with the purchase of the relevant Services; and (ii) prevail over any of the Client’s inconsistent terms or conditions contained in, or referenced in, any order confirmation or other acknowledgement, quotation, purchase order(s), delivery note, invoice or similar document or implied by law, trade custom or practice.

1.11 In the event of any conflict or inconsistency between the clauses of this Agreement, the schedules, the Quote, the following order of precedence shall apply (in decreasing order) to the extent of such conflict or inconsistency:

1. the Quote;
2. the schedules;
3. the clauses in this Agreement.

2. User subscriptions

2.1 Subject to the Client purchasing the User Subscriptions in accordance with this Agreement, the Supplier hereby grants to the Client a non-exclusive, non-transferable right and licence, without the right to grant sublicences, to permit the Authorised Users to access and use the Software Services and the Documentation during the Term solely for the Client’s internal business operations.

2.2 In relation to the Authorised Users, the Client undertakes that:

1. The maximum number of Authorised Users that it authorises to access and use the Software Services, and the Documentation shall not exceed the number of User Subscriptions it has purchased from time to time;
2. it will not allow or suffer any User Subscription to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Software Services and/or Documentation;
3. each Authorised User shall keep a secure password for their use of the Services and Documentation, that each Authorised User shall keep their password confidential and that each Authorised user shall follow the Supplier’s reasonable instructions relating to any password protection policy or multi-factor authentication;
4. it shall be solely responsible for maintaining and managing the accuracy of Authorised User details and access rights are correct and promptly updated when necessary;
5. it shall permit the Supplier or the Supplier’s designated auditor to audit the Software Services in order to establish the name and password of each Authorised User and the Client’s data processing facilities to audit compliance with this Agreement;
6. it shall ensure the Authorised Users comply with the Acceptable Use Policy, and any other policy that has been communicated to the Authorised Users and that it shall be responsible and liable for the acts and/or omissions of its Authorised Users that are using the Services;
7. if any of the audits referred to in 52.2(e) reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to the Supplier’s other rights, the Client shall promptly disable such passwords and the Supplier shall not issue any new passwords to any such individual; and
8. if any of the audits referred to in 52.2(e) reveal that the Client has underpaid Subscription Fees to the Supplier, then without prejudice to the Supplier’s other rights, the Client shall pay to the Supplier an amount equal to such underpayment within 10 Business Days of the date of the relevant audit.

2.3 The Client shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Software Services that:

1. is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
2. facilitates illegal activity;
3. depicts sexually explicit images;
4. promotes unlawful violence;
5. is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
6. is otherwise illegal or causes damage or injury to any person or property;

and the Supplier reserves the right, without liability or prejudice to its other rights to the Client, to disable the Client’s access to any material that breaches the provisions of this clause.

2.4 The Client shall not, and shall procure that the Authorised Users shall not:

1. except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this agreement:
   1. attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software, the Software Services and/or Documentation (as applicable) in any form or media or by any means;
   2. attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software or the Software Services;
2. access all or any part of the Software Services and Documentation in order to build a product or service which competes with the Software Services and/or the Documentation;
3. use the Software Services and/or Documentation to provide services to third parties;
4. license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Software Services and/or Documentation available to any third party except the Authorised Users,
5. attempt to obtain, or assist third parties in obtaining, access to the Software Services and/or Documentation, other than as provided under this 42; or
6. introduce or permit the introduction of, any Virus or Vulnerability into the Software Services or the Supplier’s network and information systems.

2.5 The Client shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Software Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify the Supplier.

2.6 The rights provided under this 42 are granted to the Client only, and shall not be considered granted to any subsidiary or holding company of the Client.

3. Services

3.1 The Supplier will notify the Client when the initial configuration of the Software Services and/or any Bespoke Software Development Services have been completed and are available for testing by the Client (the “Completion Notice“).

3.2 The Client will conduct the Acceptance Tests within 14 days of the Completion Notice (“Acceptance Period”) and notify the Supplier if the Software Services conform with the acceptance criteria set out in the Quote (“Acceptance Criteria”). If the Software Services do not conform to the Acceptance Criteria, the Client shall by the last day of the Acceptance Period notify the Supplier and provide the Supplier with a list of issues of the non-conformities.

3.3 If:

1. the Client does not provide any written comments or otherwise fails to notify of any non-conformities within the Acceptance Period;
2. commences live running of the Software Service other than in the course of undertaking Acceptance Testing; or
3. if the Software Services conform with the Quote and/or Documentation;

then for all purposes under this Agreement, such Software Services shall be deemed accepted from the date of the Completion Notice.

3.4 If there are any non-conformities within any Software Service, which have been highlighted by Client or the Supplier during the Acceptance Period and whereby the Software Service has not been accepted by the Client for this reason and such non-conformity is a directly attributable act or omission on the part of the Supplier, the Supplier shall (without prejudice to the Client’s other rights and remedies) carry out all necessary remedial work without additional charge.

3.5 If any non-conformity cannot be remedied by the Supplier due to an error, defect or fault which the Supplier is able to demonstrate to the reasonable satisfaction of the Client to be outside the Supplier’s control and which has disabled the Supplier’s ability to remedy such non-conformity, then the Supplier reserves the right to terminate work on that specific Software Service. The Supplier agrees not to charge Client, any amounts paid or payable by Client to Supplier which specifically relate to the non-conforming Software Service which cannot be remedied.

3.6 Once live, the Supplier shall use commercially reasonable endeavours to make the Software Services available 24 hours a day, seven days a week, except for:

1. planned maintenance. The Supplier shall provide the Client with reasonable advance notice wherever possible and shall use reasonable efforts to minimise the duration of any such downtime; and
2. unscheduled maintenance.

3.7 The Supplier will, as part of the Software Services and at no additional cost to the Client, provide the Client with the Support Services during Normal Business Hours. The Supplier may amend the Support Services in its sole and absolute discretion from time to time. Subject to availability, the Client may purchase enhanced support services separately at the Supplier’s then current rates.

3.8 The Supplier may provide Bespoke Software Development Services and/or Training Services for the Client to the extent included in the Quote and in accordance with the terms of this Agreement. The extent of such Services and the Fees in relation to these, shall be detailed in the Quote.

4. Data protection

4.1 For the purposes of this clause 4, the terms controller, processor, data subject, personaldata, personal data breach and processing shall have the meaning given to them in the Applicable Data Protection Laws.

4.2 Both Parties will comply with all applicable requirements of Applicable Data Protection Laws. This clause 4 is in addition to, and does not relieve, remove or replace, a Party’s obligations or rights under Applicable Data Protection Laws.

4.3 The Parties have determined that, for the purposes of Applicable Data Protection Laws, the Supplier shall process the personal data set out in the applicable data processing table attached to this Agreement (“Data Processing Table”), as a processor on behalf of the Client.

4.4 Without prejudice to the generality of clause 4.2 the Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Client Personal Data to the Supplier for the duration and purposes of this Agreement.

4.5 In relation to the Client Personal Data, the Data Processing Table and the applicable Quote sets out the scope, nature and purpose of processing by the Supplier, the duration of the processing and the types of personal data and categories of data subject.

4.6 Without prejudice to the generality of clause 4.2, the Supplier shall, in relation to Client Personal Data:

1. process that Client Personal Data only on the documented instructions of the Client, which shall be to process that Client Personal Data for the purposes set out in the Data Processing Table and/or the Quote, unless the Supplier is required by applicable laws to otherwise process that Client Personal Data. Where the Supplier is relying on applicable laws as the basis for processing Client Personal Data, the Supplier shall notify the Client of this before performing the processing required by the applicable laws unless those applicable laws prohibit the Supplier from so notifying the Client;
2. implement appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Client Personal Data and against accidental loss or destruction of, or damage to, Client Personal Data, which the Client has reviewed and confirms are appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures;
3. ensure that any personnel engaged and authorised by the Supplier to process Client Personal Data have committed themselves to confidentiality or are under an appropriate statutory or common law obligation of confidentiality;
4. assist the Client insofar as this is possible (taking into account the nature of the processing and the information available to the Supplier), and at the Client’s cost and written request, in responding to any request from a data subject and in ensuring the Client’s compliance
5. with its obligations under Applicable Data Protection Laws with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
6. notify the Client without undue delay on becoming aware of a personal data breach involving the Client Personal Data;
7. at the written direction of the Client, delete or return Client Personal Data and copies thereof to the Client on termination of the Agreement unless the Supplier is required by applicable law to continue to process that Client Personal Data. For the purposes of this clause 4.6(g), Client Personal Data shall be considered deleted where it is put beyond further use by the Supplier; and
8. maintain records to demonstrate its compliance with this clause 4 and allow for reasonable audits by the Client or the Client’s designated auditor, for this purpose, on reasonable written notice.

4.7 The Client hereby provides its prior, general authorisation for the Supplier to:

1. appoint processors to process the Client Personal Data, provided that the Supplier:
   1. shall ensure that the terms on which it appoints such processors comply with Applicable Data Protection Laws, and are consistent with the obligations imposed on the Supplier in this clause 4;
   2. shall remain responsible for the acts and omission of any such processor as if they were the acts and omissions of the Supplier; and
   3. shall inform the Client of any intended changes concerning the addition or replacement of the processors, thereby giving the Client the opportunity to object to such changes provided that if the Client objects to the changes and cannot demonstrate, to the Client’s reasonable satisfaction, that the objection is due to an actual or likely breach of Applicable Data Protection Law, the Client shall indemnify the Supplier for any losses, damages, costs (including legal fees) and expenses suffered by the Supplier in accommodating the objection;
2. only transfer Licensee Personal Data outside of the UK as required for the Purpose, provided that the Supplier shall ensure that all such transfers are effected in accordance with Applicable Data Protection Laws. For these purposes, the Client shall promptly comply with any reasonable request of the Supplier, including any request to enter into standard data protection clauses adopted by the EU Commission from time to time (where the EU GDPR applies to the transfer) or adopted by the Commissioner from time to time (where the UK data protection legislation applies to the transfer).

5. Third party providers

5.1 The Client acknowledges that the Services may enable or assist it to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that it does so solely at its own risk. The Supplier makes no representation, warranty or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by the Client, with any such third party. Any contract entered into and any transaction completed via any third-party website is between the Client and the relevant third party, and not the Supplier. The Supplier recommends that the Client refers to the third party’s website terms and conditions and privacy policy prior to using the relevant third-party website. The Supplier does not endorse or approve any third-party website nor the content of any of the third-party website made available via the Services.

5.2 Notwithstanding clause 5.1, to enable provision of the Software Services, the Supplier shall procure hosting or other services from a Third Party which it may in its discretion change from time to time. The Client agrees to comply with any Third Party terms of use that are set out in the Quote or otherwise provided to the Client.

5.3 Where the Services include Third Party services, the Client acknowledges and accepts that it may be subject to rights of audit by such Third Party. The Client acknowledges and agrees that the Supplier may regularly run a series of scripts on the Client’s server(s) to determine what software is held on the server, how many Users have access to each piece of software and assess any Subscription Fees that may be payable and shall provide reasonable and prompt assistance in relation to any information or audits requested by such Third Party.

6. Supplier’s obligations

6.1 The Supplier shall perform the Services materially in accordance with the Quote and/or Documentation with reasonable skill and care.

6.2 The Supplier’s obligations at 116.1 shall not apply to the extent of any non-conformance which is caused by use of the Software Services contrary to the Supplier’s instructions, or modification or alteration of the Software Services by any party other than the Supplier or the Supplier’s duly authorised contractors or agents. If the Software Services do not conform with the terms of clause 6.1, the Supplier will, at its expense, use reasonable commercial endeavours to correct any such non-conformance promptly. Such correction constitutes the Client’s sole and exclusive remedy for any breach of the undertaking set out in 116.1.

6.3 The Supplier:

1. does not warrant that:
   1. the Client’s use of the Software Services will be uninterrupted or error-free; 
   2. that the Software Services, Documentation and/or the information obtained by the Client through the Software Services will meet the Client’s requirements; or 
   3. the Software Services will be free from Vulnerabilities or Viruses.
2. is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Client acknowledges that the Software Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
3. does not assume any liability for third party content and applications, nor damage resulting from the installation and use of third party materials.

6.4 This Agreement shall not prevent the Supplier from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this Agreement.

6.5 The Supplier warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Agreement.

6.6 In the event of any loss or damage to Client Data, the Client’s sole and exclusive remedy against the Supplier shall be for the Supplier to use reasonable commercial endeavours to restore the lost or damaged Client Data from the latest back-up of such Client Data maintained by the Supplier (if any). Notwithstanding the foregoing, the Client acknowledges that all back-up of Client Data shall be the responsibility of the Client and the Supplier shall not be responsible for any loss, destruction, alteration or disclosure of Client Data.

7. Client’s obligations

7.1 The Client shall:

1. provide the Supplier with:
   1. all necessary co-operation in relation to this Agreement; and
   2. all necessary access to such information, equipment or Client premises as may be required by the Supplier;
   In order to provide the Services, including but not limited to Client Data, security access information and configuration services;
2. without affecting its other obligations under this Agreement, comply with all applicable laws and regulations with respect to its activities under this Agreement;
3. carry out all other Client responsibilities set out in this Agreement in a timely and efficient manner. In the event of any delays in the Client’s provision of such assistance as agreed by the parties, the Supplier may adjust any agreed timetable or delivery schedule as reasonably necessary and the Supplier shall not be liable for any failure to deliver any or all of the Services to the extent caused by Client’s delay;
4. ensure the Software Services are used by competent trained employees only or by persons under their supervision;
5. ensure that the Authorised Users use the Software Services and the Documentation in accordance with the terms and conditions of this Agreement and shall be responsible for any Authorised User’s breach of this Agreement;
6. obtain, maintain and comply with all necessary licences, consents, and permissions necessary for the Supplier, its contractors and agents to perform their obligations under this Agreement, including without limitation the Services;
7. ensure that its network and systems comply with the relevant specifications provided by the Supplier from time to time;
8. use all reasonable efforts to follow the reasonable instructions of the Supplier support personnel with respect to the resolution of defects;
9. comply with the Acceptable Use Policy; and
10. be, to the extent permitted by law and except as otherwise expressly provided in this Agreement, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to the Supplier’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Client’s network connections or telecommunications links or caused by the internet.

7.2 The Client shall own all right, title and interest in and to all of the Client Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Client Data.

7.3 In the event that the Client is in breach of its obligations under the Agreement then the Supplier shall provide written notice of such breach, specifying in detail the nature of the breach and providing seven (7) days’ notice to remedy such breach if capable of remedy. If the Client fails to remedy such breach the Supplier shall be entitled to terminate or suspend the Services without prejudice to any pre-existing rights and obligations of either Party. The Supplier shall have no liability or responsibility should the Services fail to comply with the Quote or any agreed service levels as a result of the Client (including without limitation any of its Authorised Users) being in breach of the Agreement.

7.4 In the event that an Authorised User is in breach of the terms of the Acceptable Use Policy and/or any other policy that has been communicated to it, the Supplier may suspend the Authorised User’s access to the Services with immediate effect.

7.5 For the avoidance of doubt, if the Supplier suspends the Services, the Client shall remain liable to pay all Fees as though the Services had continued as agreed, for the period of suspension.

8. Charges and payment

8.1 The Client shall pay the Fees to the Supplier in accordance with this 148 and the frequency set out in the Quote.

8.2 The Client shall pay each undisputed invoice, or undisputed amount of any disputed invoice, for the Fees and Expenses in full and cleared funds (without deduction or set-off) within thirty (30) days of the date of such invoice unless otherwise set out in the Quote or otherwise agreed by the Supplier in writing. The Client shall pay each undisputed invoice for the Subscription Fees in full and cleared funds (without deduction or set-off) in advance unless otherwise agreed. Expenses shall be invoiced separately.

8.3 If the Supplier has not received payment by the due date, and without prejudice to any other rights and remedies of the Supplier:

1. the Supplier may, on no less than 5 Business Days’ notice to the Client and without liability to the Client, disable the Client’s access to all or part of the Subscription Services and the Supplier shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
2. interest shall accrue on a daily basis on such due amounts at an annual rate equal to 4% over the then current base lending rate of the Supplier’s bankers in the UK from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.

8.4 All amounts and Fees stated or referred to in this Agreement:

1. shall be payable in pounds sterling;
2. are, subject to 1812.3(b), non-cancellable and non-refundable;
3. are exclusive of value added tax, which shall be added to the Supplier’s invoice(s) at the appropriate rate.

8.5 The Supplier shall be entitled to increase the Fees as follows:

1. subject to clause 8.4(b), on an annual basis with effect from each anniversary of the Effective Date in line with the percentage increase in the Consumer Prices Index in the preceding 12 (twelve) month period;
2. at any time where such increase relates to services provided by a Third Party in line with any increases imposed upon the Supplier by such Third Party upon reasonable notice (to the extent that such is provided to the Supplier); and
3. Notwithstanding clause 8.4(a) and clause 8.4(b), on giving 90 days’ prior written notice, to increase the Fees on an annual basis with effect from each anniversary of the Effective Date. If the Client does not agree with this increase, then it may terminate this Agreement at the end of the then current term upon no less than 30 days written notice and before such price increase takes effect. If the Supplier does not receive written notice within thirty (30) days, the Client is deemed to have agreed to the amendment to the Fees.

9. Proprietary rights

1. The Client acknowledges and agrees that the Supplier and/or its licensors own all intellectual property rights in the Services and the Documentation. Except as expressly stated herein, this agreement does not grant the Client any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services or the Documentation.
2. The Supplier confirms that it has all the rights in relation to the Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this agreement.

10. Confidentiality

10.1 Each Party agrees and undertakes that it will treat all Confidential Information disclosed to it by the other Party in connection with the Services as strictly confidential and shall use it solely for the purpose intended by the Services and shall not, without the prior consent of the other Party, publish or otherwise disclose to any third party any such Confidential Information except for the purposes intended by this Agreement, including the provision of the Services.

10.2 To the extent necessary to provide the Services, each Party may disclose Confidential Information to its Representatives, in each case under the same conditions of confidentiality as set out in clause 10.1.

10.3 The obligations of confidentiality set out in this clause 10 shall not apply to any information or matter which: (i) is in the public domain other than as a result of a breach of this Agreement; (ii) was in the possession of the receiving Party prior to the date of receipt from the disclosing Party or was rightfully acquired by the receiving Party from sources other than the disclosing Party; (iii) is required to be disclosed by law, or by a competent court, tribunal, securities exchange or regulatory or governmental body having jurisdiction over it wherever situated; or (iv) was independently developed by the receiving Party without use of or reference to the Confidential Information.

11. Indemnity

11.1 The Client shall defend, indemnify and hold harmless the Supplier against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Client’s use of the Services and/or Documentation, provided that:

1. the Client is given prompt notice of any such claim;
2. the Supplier provides reasonable co-operation to the Client in the defence and settlement of such claim, at the Client’s expense; and
3. the Client is given sole authority to defend or settle the claim.

11.2 The Supplier shall defend the Client, its officers, directors and employees against any claim that the Client’s use of the Services or Documentation in accordance with this agreement infringes any third party copyright, trade mark, database right or other intellectual property right, and shall indemnify the Client for any amounts awarded against the Client in judgment or settlement of such claims, provided that:

1. the Supplier is given prompt notice of any such claim;
2. the Client does not make any admission, or otherwise attempt to compromise or settle the claim and provides reasonable co-operation to the Supplier in the defence and settlement of such claim, at the Supplier’s expense; and
3. the Supplier is given sole authority to defend or settle the claim.

11.3 In the defence or settlement of any claim, the Supplier may procure the right for the Client to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this agreement without any additional liability or obligation to pay liquidated damages or other additional costs to the Client.

11.4 In no event shall the Supplier, its employees, agents and sub-contractors be liable to the Client to the extent that the alleged infringement is based on:

1. a modification of the Services or Documentation by anyone other than the Supplier;
2. the Client’s use of the Services or Documentation in a manner contrary to the instructions given to the Client by the Supplier;
3. the Client’s use of the Services or Documentation after notice of the alleged or actual infringement from the Supplier or any appropriate authority;
4. the Client Data;
5. the services of a Third Party; or
6. the Client’s breach of this agreement.

11.5 The foregoing and 1812.3(b) state the Client’s sole and exclusive rights and remedies, and the Supplier’s (including the Supplier’s employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement or alleged infringement of any third party patent, copyright, trade mark or database right by the Supplier.

12. Limitation of liability

The following definitions apply in this clause 12:

1. liability: every kind of liability arising under or in connection with this Agreement including but not limited to liability in contract, tort (including negligence), misrepresentation, restitution or otherwise; and
2. default: any act or omission resulting in one Party incurring liability to the other.

12.1 Except as expressly and specifically provided in this Agreement:

1. the Client assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Client, and for conclusions drawn from such use. The Supplier shall have no liability for any damage caused by errors or omissions in any Client Data, information, instructions or scripts provided to the Supplier by the Client in connection with the Services, or any actions taken by the Supplier at the Client’s direction;
2. all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement; and
3. the Services and the Documentation are provided to the Client on an “as is” basis.

12.2 Nothing in this Agreement excludes the liability of the Supplier:

1. for death or personal injury caused by the Supplier’s negligence; or
2. for fraud or fraudulent misrepresentation.

12.3 Subject to 1712.1 and 1712.2:

1. the Supplier shall have no liability for any:
   1. loss of profits
   2. loss of business
   3. wasted expenditure
   4. depletion of goodwill and/or similar losses
   5. loss or corruption of data or information, or
   6. any special, indirect or consequential loss, costs, damages, charges or expenses; and
2. the Supplier’s total aggregate liability to the Client, and its Authorised Users (including in respect of the indemnity at 1611.2), in respect of all defaults occurring under this Agreement shall be limited to 100% of the Fees paid for the Services in the 12 months preceding the date on which the claim arose.

12.4 The Supplier expressly excludes:

1. any warranty to the Client that the Services supplied or licences by a Third Party under this Agreement will operate substantially in accordance with, and perform, the material functions and features as set out in the marketing, sales or other associated documentations; and
2. any and all liability in relation to the use of services supplied by any Third Party.

12.5 Nothing in this agreement excludes the liability of the Client for any breach, infringement or misappropriation of the Supplier’s Intellectual Property Rights.

13. Term and termination

13.1 This Agreement shall commence on the Effective Date and each Quote shall commence on either the Effective Date or the Services Commencement Date, as applicable, and shall remain in full force for the Initial Term and, thereafter, this Agreement, and unless stated otherwise in the relevant Quote, shall be automatically renewed for successive periods of 12 months (each a “Renewal Period”), unless:

1. either Party notifies the other Party of its intention to terminate, in writing, at least 90 days before the end of the Initial Term or any Renewal Period, in which case this Agreement shall terminate upon the expiry of the applicable Initial Term or Renewal Period; or
2. otherwise terminated in accordance with the provisions of this Agreement;

and the Initial Term together with any subsequent Renewal Periods shall constitute the “Term”.

13.2 Without affecting any other right or remedy available to it, either Party may terminate this Agreement with immediate effect by giving written notice to the other Party if:

1. the other Party fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment;
2. the other Party (and in relation to the Client, including its Authorised Users) commits a material breach of any term of this Agreement, a Quote or the Acceptable Use Policy, and (if such breach is remediable) fails to remedy that breach within a period of fourteen (14) days after being notified to do so;
3. the other Party suspends, or threatens to suspend, payment of its debts, or is unable to pay its debts as they fall due or admits inability to pay its debts, or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
4. the other Party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.

13.3 If for any reason a contract between a Third Party (or any other third party) and the Supplier relating to the Supplier’s right to use, install, support or provide the Services which is the subject of the Agreement is terminated, then this Agreement shall automatically terminate.

13.4 On termination of this Agreement for any reason:

1. all licences granted under this Agreement shall immediately terminate and the Client and its Authorised Users shall immediately cease all use of the Services and/or the Documentation and the Supplier shall withdraw access to the Services and/or Documentation;
2. each Party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other Party;
3. the Supplier may destroy or otherwise dispose of any of the Client Data in its possession unless the Supplier receives, no later than ten days after the effective date of the termination of this agreement, a written request for the delivery to the Client of the then most recent back-up of the Client Data. The Supplier shall use reasonable commercial endeavours to deliver the back-up to the Client within 30 days of its receipt of such a written request, provided that the Client has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Client shall pay all reasonable expenses incurred by the Supplier in returning or disposing of Client Data; and
4. any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced.

14. Force majeure

Neither Party shall be in breach of this Agreement or otherwise liable for any delay or failure in the performance of its obligations for so long as and to the extent that such delay or failure results from events, circumstances or causes beyond its reasonable control. If the period of delay or non-performance continues for 30 days, the Party not affected may terminate this Agreement by giving not less than 14 days’ written notice to the affected Party.

15. Variation

No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

16. Waiver

No failure or delay by a Party to exercise any right or remedy provided under this Agreement 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 shall preclude or restrict the further exercise of that or any other right or remedy.

17. Rights and remedies

Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

18. Severance

18.1 If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Agreement.

18.2 If any provision or part-provision of this Agreement is deemed deleted under 2118.1 the Parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

19. Entire agreement

19.1 This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous and contemporaneous agreements, promises, assurances and understandings between them, whether written or oral, relating to its subject matter.

19.2 Each Party acknowledges that in entering into this agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement.

19.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.

20. Assignment

The Client shall not, without the prior written consent of the Supplier, assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under this Agreement. The Supplier may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under this Agreement.

21. No partnership or agency

Nothing in this Agreement is intended to or shall operate to create a partnership between the Parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

22. Third party rights

This Agreement is made for the benefit of the Parties, to it and (where applicable) their successors and permitted assigns, and is not intended to benefit or be enforceable by anyone else.

23. Notices

23.1 Any notice or other communication required to be given to a Party under or in connection with this Agreement shall be in writing and shall be (a) delivered by hand or sent by pre-paid first class post or other next Business Day delivery service, at its registered office (if a company) or (in any other case) its principal place of business; or (b) sent by email to the address for each Party set out in the Quote or as otherwise agreed between the Parties in writing.

23.2 Any notice or communication shall be deemed to have been received (a) if delivered by hand, on signature of a delivery receipt, or otherwise at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; or (b) if delivered by email, at the time of transmission, or, if this time falls outside Normal Business Hours, when Normal Business Hours resume.

23.3 Each Party shall as soon as reasonably practicable notify the other of any change to their contact details.

23.4 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

24. Governing law

This Agreement and 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 interpreted in accordance with the law of England and Wales.

25. Jurisdiction

Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).

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Schedule 1 Data processing table

Data subjects:	Customers of the Client Employees and/or contractors of the Client Client third parties Business contacts in general
Types of personal data:	Name Job title Email address Phone number Business/home address Any other personal data provided by the Client to the Supplier
Special categories of personal data:	Health related data.
Purpose of processing:	For the provision of the Services.
Nature of processing:	For the provision of the Services.
Duration of processing:	For the Term of this Agreement
Approved Sub-Processors:	None
Approved international transfers:	None
Additional instructions:	None

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Schedule 2 Data Support Services

1. Interpretation

1.1 Except as defined in this Schedule 3, capitalised terms shall have the meanings given to them in the Agreement. The following definitions in this paragraph 1.1 apply in this Schedule 2:

“Business Hour” means an hour during Support Hours.

“Error” means a defect in the Software Services that causes the Software not to function in accordance with its Documentation and/or the Quote;

“Support Hours” means 09:00 through 17:00 pm local UK time each Business Day.

“Support Period” means the duration of the Term of the Services.

2. Provision of Support

2.1 The Supplier will, during the Support Period, provide the Support Services specified in this Schedule 3 during the Support Hours in respect of the current version of the Software. The Client will use the helpdesk details notified to the Client to report Errors and raise enquiries.

2.2 The Service will be hosted on Third Party server infrastructure. The Support Services described herein shall include the maintenance, back-up and on-going management of the Supplier environments on these Third Party servers in line with good industry practice.

3. Severity Codes

3.1 All telephone enquiries from the Client will be categorised by the Supplier in accordance with the following severity code:

1. A severity code of “1” will be assigned to calls which, based on the information supplied by the Client, indicate the existence of an Error in a business-critical function of the Software and/or which results in the inability of the Client to utilise the Software, e.g.: The Software is inaccessible or the users cannot login.
2. A severity code of “2” will be assigned to calls which, based on the information supplied by the Client, indicate an Error in the Software that affects the Client’s ability to work, but that does not cause mission-critical failure, e.g.: Users cannot enter new claims or policies but can view the data in the Software.
3. A severity code of “3” will be assigned to calls which are not of severity code “1” or “2”, and which based on the information supplied by the Client, indicate an Error in the Software that is typically an intermittent failure; one that may be identified as a potential bug-fix related issue (this will be referred to as a “Known Issue”); and which will not prevent the Client from performing all necessary functions, e.g.: Reports do not display as intended.

4. Response

4.1 Following categorisation of each notification, the Supplier shall use reasonable endeavours to respond by providing an initial engineer telephonic response, a diagnosis response identifying the cause of the Error, and a solution shipment which resolves the Error to the Client within the times from the time the telephone enquiry is made by the Client as set forth below:

Severity Code	Description	Initial Engineer Telephonic Response	Target Diagnosis Responses Time	Target Solution Fix Time
1	Fatal, Detection Function	Within 1 Business Hour	Within 2 Business Hours	Within 4 Business Hours
2	Non-fatal, Detection Function	Within 2 Business Hours	Within 4 Business Hours	Within 8 Business Hours
3	Non-fatal	Within 2 Business Hours	Within 2 Business Days	Within 5 Business Days

4.2 All timeframes set out above are estimated.

5. Technical Advice

5.1 The Supplier shall provide technical advice to the Client by telephone or electronic mail during Support Hours giving advice and assistance to the Client in connection with but not limited to:

1. the operation and use of the Software;
2. identification and verification of the causes of Errors;
3. workarounds or temporary fixes for such Errors; and
4. the features and capabilities of the Software.

6. On site Attendance

If any Error requires the Supplier to attend to the Client’s site the Supplier will give reasonable notice to the Client and comply with all reasonable access and security procedures notified to them whilst attending the Client’s site. If such an Error has been caused by the Client, the Client shall be liable to pay for the Supplier’s time (at its then hourly rate) and expenses in attending the Client site.

7. Licensee’s Obligations

The Client shall:

1. notify the Supplier of each Error in the Software as it arises and supply the Supplier with reasonable details of the Error; and
2. co-operate fully with the Supplier in its efforts to diagnose any Error in the Software.

8. Exclusions

8.1 The Support Services do not include:

1. attendance to faults caused by use of the Software otherwise than in accordance with this Agreement;
2. support of any programs, software, equipment, servers, networks or other tools used by the Client’s other than the Software;

8.2 Any service that is provided by the Supplier outside the scope of the Services or due to excessive use or faults caused by the Client may be charged to the Client provided that the Supplier shall notify the Client in advance and obtain the Client’s prior written approval before undertaking any such work.