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Classification: Restricted
Framework Agreement for supply of software and services
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FRAMEWORK AGREEMENT FOR THE SUPPLY OF SOFTWARE AND SERVICES
DATE:
This Agreement is effective on ____________________________________
PARTIES: ACCESS UK LIMITED (registration no. 2343760) whose principal place of business is at The Old School,
Stratford St Mary, Colchester CO7 6LZ (“We”, “Us” or “Our”); AND
[CUSTOMER NAME] whose principal place of business/registered office is at [CUSTOMER ADDRESS]
(“You”)
each a “party” and collectively the “parties”.
BACKGROUND (A) We are a provider of software, technical support and other related IT services.
(B) You wish to be provided with software, technical support, and potentially IT consulting services.
(C) The parties have agreed that the terms and conditions set out in this Agreement will apply to the
supply of the Software, Technical Support and other IT Consulting Services (as the case may be) by
Us to You, as indicated in a Statement of Work.
SIGNED BY:
Signed on behalf of [CUSTOMER] Signed on behalf of Access UK Limited
Signature Signature
Print name Print name
Title Title
Date Date
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IT IS AGREED AS FOLLOWS:
1. DEFINITIONS AND INTERPRETATIONS
1.1. In this Agreement (including the Statements of Work and Schedules) the following expressions shall have the following meanings:
Access Software means standard software components or modules of the Software that are owned by Us and made
available under this Agreement and specified in the applicable Statement of Work;
aCloud Solution means the business software solutions (including aCloud Expense, aCloud CRM, aCloud Capture,
aCloud Insight, aCloud Collaborate and aCloud Document) as specified in an applicable Statement of
Work which is provided by Us as a SaaS;
Agreement means this framework agreement inclusive of the Statements of Work and, where applicable, the
Schedules (and their appendices);
Annual Licence Fee means the fee payable for the Licence in each 12 month period, as set out in clause 3 and relevant
Statement of Work (as may be amended from time to time in accordance with clause 5.3);
Business Days means Monday to Friday excluding Bank holidays and public holidays in England;
Business Hours means the hours of 0900 to 1700 on Business Days;
Cancellation Charge means any cancellation charges set out in clause 5.7;
Confidential
Information
means any and all proprietary information, know-how, ideas, concepts, trade secrets, designs,
specifications, manuals, computer programs, data whether of a business, financial, technical or non-
technical nature and whether existing in hard copy form, on computer disk or otherwise which is
confidential and/or held in confidence by the disclosing party;
Configured Software means software code changes and additions to Software specifically developed or modified or written by
Us for You. Such “Configured Software” is supplied under licence and will remain Our property;
Consulting Services means the consultancy services specified in an applicable Statement of Work and may include, but not
be limited to, implementation, configuration, integration and or general IT consultancy services;
CPI means the Consumer Price Index as published by the UK Office for National Statistics or any reasonably
substituted index at Our discretion;
Customer System means Your computer equipment, operating system, computer network infrastructure hardware and
associated telecom links and networks;
Documentation means documents or on-line help (provided in any media) relating to the Software;
Effective Date means the date the first Licence commences as set out in clause 3.3;
Event of Insolvency means the situation in which a party becomes insolvent, has an insolvency practitioner appointed over
the whole or any part of its assets, enters into any compound with creditors, or has an order made or
resolution for it to be wound up (otherwise than in the furtherance of a scheme for solvent amalgamation
or reconstruction), or an event analogous occurs in respect of a party in any jurisdiction to which that
party is subject;
Initial Licence means the permission granted to the Licensee to hold the Software only but not access or Use the
Software;
Initial Licence Fee means the fee for the Initial Licence as set out in clause 3 and relevant Statement of Work;
Intellectual Property
Rights
means all intellectual and industrial property rights, including patents, trademarks, logos, brand, company
names, rights in databases, rights in designs, inventions, discoveries, know-how and copyrights
(including rights in computer software) (whether or not any of these is registered and including
applications for registration of any such thing) and all rights or forms of protection of a similar nature or
having equivalent or similar effect to any of these which may subsist anywhere in the world;
Licence means the permission granted to the Licensee to Use the Software on the terms of this Agreement
during the period for which the Annual Licence Fee has been paid;
Licence Term means the total period for which You hold a valid Licence;
Licensee means You and/or the Permitted Users;
Permitted Users means the permitted users of the Software (as set out in the Statement of Work);
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SaaS means the provision of the aCloud™ Solutions on a software as a services basis in accordance with the
terms of this Agreement and Schedule 3;
Service Location means the location(s) where the Services will be provided (as set out in the Statement of Work);
Services means the Technical Support, Consulting Services and Hosting Services to be provided by Us and as set
out in Statements of Work;
Software means Access Software, Configured Software, Third Party Software and the aCloud™ Solutions
specified to in an applicable Statement of Work;
Specification means each specification for the Software as set out in the relevant Documentation and/or the Statement
of Work;
Standard Hosting means the hosting services (on a shared server) provided by Us on the terms of this Agreement and the
additional terms set out in Schedule 1;
Statement(s) of Work means each agreement specifying the Software and/or Services to be supplied under this Agreement,
which forms part of this Agreement and shall be annexed to it;
Support Fee means the fee for the Technical Support as set out in a relevant Statement of Work;
Support Period means a period of twelve (12) consecutive months which runs concurrently with the Licence Term;
Technical Support means technical operating support in relation to the operation of the Software ;
Third Party Software means software that is owned by a party other than either You or Us which may be supplied under this
Agreement as specified in a Statement of Work;
Use means the restricted use of and access to the Software by the Permitted Users (unless otherwise
agreed in writing by Us) in object code form by storing, accessing, running and/or loading the Software
on the Customer Systems to process instructions in the Software as agreed between the parties and the
Documentation;
Warranty Period means the applicable warranty period for the Software and/or Services being 60 days from the date of
installation unless otherwise as set out in an applicable Statement of Work.
1.2. References to regulations, statutes or other statutory provisions shall be construed to include references to those regulations, statutes
or provisions as amended, re-enacted or modified from time to time and shall include any subordinate legislation under the relevant
statute or statutory provision.
1.3. The headings in this Agreement are for ease of reference only and shall not in any way affect their construction or interpretation.
1.4. Words denoting the singular include the plural and vice versa; words denoting any one gender include all genders and vice versa,
and reference to a person shall include an individual, partnership, body corporate and unincorporated association.
1.5. References to any party shall include its personal representatives lawful successor in title and permitted assigns;
1.6. The words and phrases “other”, “including” and “in particular” shall not limit the generality of any preceding words or be construed as
being limited to the same class as the preceding words where a wider construction is possible.
2. TERM AND STATEMENT OF WORK
2.1. This agreement is a framework agreement, the terms of which are to be incorporated into any number of Statements of Work and
Schedules which are, or may be, attached. Each Statement of Work constitutes a separate agreement on the terms of this framework
agreement. Termination of any one Statement of Work shall not affect termination of any other Statement of Work (although this shall
not prevent more than one Statement of Work being subject to termination if termination circumstances apply to them). The term of
each Statement of Work shall be as set out in that Statement of Work. The framework agreement shall subsist for as long as at least
one Statement of Work subsists. The limitations of liability in clause 8 cover this Agreement including all the Statements of Work in
aggregate.
2.2. This Agreement shall become effective on the date first appearing above.
2.3. Each Statement of Work, together with any Schedules and Appendices will form a separate and independent contract for the
applicable transaction between us and will commence on the date on which it is signed by both parties.
2.4. For the supply of any further Software and/or Services the parties shall agree new Statements of Work. All Statements of Work are
automatically made on the terms of this Agreement together with any specifically agreed terms set out in the Statement of Work.
2.5. If there is any conflict or inconsistency between any provision of this framework agreement and any Statement of Work the terms of
the framework agreement shall prevail unless specifically stated in writing in a Statement of Work with reference to this clause 2.5
2.6. Except as set out in this Agreement, all dates and timescales given or agreed to by Us in respect of a Statement of Work shall be
estimates only.
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3. SOFTWARE
In the event that You elect to receive Software from Us, this clause 3 shall apply in respect of such Software.
3.1. In consideration of and conditional upon the payment of the Initial Licence Fee to Us, We grant the Licensee a non-exclusive,
revocable, non-transferable Initial Licence which shall commence on the date of installation of the Software and shall continue for the
Licence Term.
3.2. In consideration of, and conditional upon, the payment of the Annual Licence Fee to Us, We grant the Licensee a non-exclusive,
revocable, non-transferable Licence to Use the Software for the period of twelve (12) months from the Effective Date on the terms of
this Agreement. Thereafter, the Licence shall automatically renew for further periods of 12 months subject to payment of the Annual
Licence Fee in respect of each further 12 month period. The Software may not be Used unless the Annual Licence Fee is paid in full.
3.3. The first Licence shall commence on the date on which We supply the Software activation keys to You unless otherwise agreed in the
Statement of Work. Subsequent Licences shall commence on the anniversary of the Effective Date (subject to payment of the
relevant Annual Licence Fee).
3.4. The Licence covers the Use of the Software where the database(s) reside on a single SQL server instance only. Use of the Software
is limited to the processing of Your/ Licensee's own data, or the data of Your group of companies (as defined in section 1159 of the
Companies Act 2006), as agreed in writing by Us. For the avoidance of any doubt, You are not permitted to provide services to third
parties using the Services or the Software.
3.5. You shall be responsible for ensuring that Permitted Users are properly trained to operate the Customer System on which the
Software resides. Unless otherwise specified within the Licence (or requirements document when Configured Software has been
supplied) the Software will be deemed as accepted by You unless You notify Us otherwise within thirty (30) days of installation or
supply of the activation keys. No right is given for the Licensee to Use the Software commercially unless You have acknowledged
acceptance. If the Software is put to commercial use or operation by the Licensee, whether or not acceptance has been
acknowledged, the acceptance will be deemed to have occurred on the first date of such use.
3.6. The Licensee can Use the Software to create and service up to two (2) databases (excluding any databases used exclusively for
training, testing or disaster recovery). The Licence can be extended to service additional databases if You purchase additional Licence
components from Us as agreed in a Statement of Work.
3.7. The Software may be Used by the number of Permitted Users purchased.
3.8. Use of the Software by concurrent users across all of Your group of companies shall not exceed the number of concurrent Permitted
User elements purchased and set out in the Statement of Work.
3.9. The Software is licensed for Use to the Permitted Users as set out in the applicable Statement of Work. Should You wish to increase
the Permitted Users, You shall be entitled to do so, subject to You paying an additional Initial Licence Fee and associated Annual
Licence Fee.
3.10. You shall not use the Software or Documentation other than in accordance with the terms of this Agreement and the relevant
Statement of Work and Use of the Software or the Documentation shall not include Use by or for the benefit of any person other than
those persons or groups specified as Permitted Users.
3.11. You are required to purchase Technical Support from Us for the entire duration of the Licence Term. We reserve the right to embed
technology within the Software to automatically time expire the Software if the relevant Annual Licence Fee is not paid by You. The
Software comprises of computer software application(s), which in turn may include a number of elements, (modules and users). This
Licence is deemed to cover the applications and elements that We invoice to You. Future purchases of additional elements and/or
applications that are invoiced will be included within this Licence upon payment of the invoice, and the inclusion of these elements
and/or applications within the Technical Support. In the event that the Technical Support is suspended or terminated for any reason
the Licence may continue subject to Our prior written consent but where such termination is as a result of Your default, any charges
paid or payable for the Technical Support shall not be refunded where paid and shall continue to be payable where not yet paid.
3.12. You acknowledge that the Third Party Software and Access Software, and associated documentation, are provided on an “as is” basis
and have not been prepared to meet Your individual requirements and that it is Your responsibility to ensure the facilities and
functions described in the documentation and any applicable Specification meet Your requirements.
3.13. Except to the extent such actions cannot be lawfully prevented, You shall not (nor permit any third party to) disassemble, decompile,
modify, adapt, reverse engineer, merge or make error corrections to the Software, in whole or in part, or in any way expose the source
code, instruction sequences, internal logic, protocols, or algorithms of the Software. Nothing in this clause shall prevent You from
configuring interfaces and other elements in Software which are intended to be configured by You.
3.14. You acknowledge that You have no right to have any access to the Software in source code form, or in unlocked coding of any kind.
You agree that You must not attempt in any way to (nor permit any third party to) remove or circumvent any security devices present
within the Software which are intended to protect the facility and integrity of the Software and You agree not to use any systems,
processes or software in connection with the Software which are intended to circumvent such protections.
3.15. You shall permit Us to have access upon reasonable notice during the Licence Term to inspect during normal working hours the
premises and the Customer System at or on which the Software is being kept or used, and any records kept pursuant to the Licence,
for the purposes of ensuring that You are complying with the terms of this Agreement. In the event that You have unauthorised copies
of the Software, without prejudice to any other rights or remedies that We may have, You shall pay an additional fee to Us in respect
of any such unauthorised copies calculated by reference to the standard list price prevailing at the date of invoice in respect of such
Software.
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3.16. We shall notify You of all version upgrades to the Software, via Our user newsletters which are sent periodically by email. At Your
request We shall provide You with the software for each such upgrade free of charge and within a reasonable period of time following
such request. Services relating to the installation of such upgrades are normally subject to charge. Subject to payment of the relevant
Support Fee, We shall support the version of the Software used by You from time to time in accordance with the terms set out of this
Agreement.
3.17. Where Third Party Software is provided under this Agreement, We shall provide such software to You under the software licence
terms provided by the third party licensor of such software.
3.18. Where Configured Software is provided under this Agreement, this will be provided subject to the terms agreed in a relevant
Statement of Work and in accordance with the requirements as specified in the specifications agreed between the parties following
scoping workshops. If agreed between the parties in the Statement of Work, You may enter into Our standard escrow agreement with
NCC in connection with the Configured Software.
3.19. We shall use reasonable endeavours in accordance with good industry practice to prevent the introduction of known computer viruses
or other programme code which is likely to damage the Software or the Customer System. You will use reasonable endeavours in
accordance with good industry practice to prevent the introduction of any known computer viruses into the Customer System and will
check each release of the Software with the same diligence as would be expected from an organisation similar to You using current
virus scanning software from time to time.
3.20. The Software may include “client installed” reporting technology from SAP Business Objects (Crystal Reports). This technology is
available to You for use as part of the Software application under a limited runtime licence arrangement from SAP Business Objects.
The free runtime technology may not be utilised outside of the Software. Unless You obtain the appropriate additional licences from
SAP UK Ltd then this software technology shall not be used on a rental or timesharing basis, or used within a bureau, hosted, ASP, or
software-as-a-service facility; or used within server environments as part of a reports distribution system. Where You purchase a
licence to use FocalPoint software We provide a 5 concurrent access user licence, (CALs) for Crystal Reports Developer. You shall
purchase further CALs should Your reporting demands exceed the provided licensed users. You agree not to alter, disassemble,
decompile, translate, adapt or reverse engineer the runtime software and/or the report file formats except to the extent that such
actions cannot be lawfully prevented.
SOFTWARE PERFORMANCE
3.21. We warrant that during the Warranty Period the Software will, when used in accordance with the Documentation, operate in all
material respects in accordance with the Documentation and Specification (where applicable). We will obtain and at all times during
the Licence Term maintain all necessary licences and consents, and comply with all applicable laws and regulations relating to the
Software. For the avoidance of doubt, We do not warrant that the operation of the Software will be uninterrupted or error free.
3.22. If, within the relevant Warranty Period, You notify Us in writing of any defect or fault in the Software in consequence of which it fails to
conform in a material way with the Documentation or Specification respectively and such defect or fault does not result from any of the
events set out in clauses 3.24, 3.25 or 3.26, We shall, at Our option, repair or replace the Software (or any defective part thereof). Any
replacement Software will be of the same or equivalent functionality. Fixes to Software will normally be provided within a new or later
software version supplied to You.
3.23. Software response times are subject to Your own IT systems specification, and as such cannot be guaranteed or underwritten by Us.
You are solely responsible for the Customer System, its suitability, compatibility with the Software and for ensuring that it fully meets
Your business requirements. We are not a manufacturer of Customer System nor an expert in this area.
3.24. The warranty given under clause 0 does not cover, and We shall have no liability for, persistent or material defects or failures in the
Software caused by:
3.24.1. any fault in the Customer System that prevents the Software working in or with the Customer System;
3.24.2. the Licensee’s failure to use the Software in accordance with the Documentation or terms specified in the Statement of
Work;
3.24.3. use of consumables which are described in the Statement of Work or which We have notified to You as being
inappropriate for use with the Software;
3.24.4. third party software or hardware which is not provided or approved by Us;
3.24.5. any modification or alteration of or attachment to the Software or removal of the same, other than those made by Us or on
Our behalf;
3.24.6. persistent refusal to allow Us access to the Software for the purpose of Technical Support
3.25. In addition to the provisions of clause 3.24 We shall have no liability or responsibility for:
3.25.1. support of the Customer System, other software and/or hardware, accessories, attachments, machines, systems or
devices which are not supplied by Us;
3.25.2. rectification of problems not directly associated with Software.
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3.26. The provision of the warranty in clause 3.21 is further dependent on You having a current and valid fully paid up Licence including
Technical Support. The warranty does not cover minor errors that do not materially affect the functionality of the Software. This
warranty applies to standard (non-customised) Software only and replication of errors and corrections will only be made in relation to
the standard version of the Software.
3.27. We shall have the right to charge You on a time and material basis at Our standard prevailing rates applicable at the date of invoice in
respect of any repairs or replacements carried out or claims made by You which are shown to be caused by any of the events
described by clauses 3.24, 3.25 or 3.26 above.
3.28. We have a policy of continual improvement and reserve the right to add, delete, and amend features within the Software without
notice. Any changes will be notified to You in advance and functionality will be at least equivalent to the current installed application.
The warranty and any remedy given in this clause is in lieu of any other condition, remedy, or warranty given whether expressed or
implied by law as to the quality, or fitness for the purpose, of the Software insofar as such terms may lawfully be excluded.
4. SERVICES
In the event that You elect to receive Services from Us, this clause 4 shall apply in respect of such Services specified in the applicable Statement
of Work.
TECHNICAL SUPPORT
4.1. In consideration of and conditional upon the payment of the Support Fees, We shall provide Technical Support to You on the terms of
this Agreement.
4.2. Technical Support shall start on the Effective Date and continue during the Licence Term, subject to the payment of the relevant fee.
If You purchase additions to the Software, We may include such additions within the Technical Support provided and, notwithstanding
clause 5.4, shall notify You of any change to the applicable fee.
4.3. We will use reasonable commercial endeavours to provide Technical Support in accordance with good industry practices in relation to
the daily and regular operation of the supported Software. We will use reasonable commercial endeavours to ensure that You receive
full and conclusive responses where practical and reasonable.
4.4. Technical Support is provided by telephone, email and via a remote computer connection, subject to You enabling the required
connections (in each case We shall determine the most effective medium for efficient support);
4.5. Technical Support will be provided during “Support Hours” being Business Hours other than during the Christmas shutdown period
(being the days between Christmas bank holidays and the New Year bank holidays) and up to three half days per year which are
dedicated to special staff training events and which shall be notified to You on reasonable notice;
4.6. We will provide Technical Support to Permitted Users who have undertaken training to Our reasonable satisfaction. You will appoint a
representative with all the necessary authority to bind Your company and who shall consolidate the queries of Permitted Users and be
the prime contact for Support Services to ensure smooth communications.
4.7. You acknowledge and accept that We are not qualified to provide any professional advice pertaining to tax or related matters and
accordingly We accept no responsibility or liability whatsoever for any loss (including consequential loss), damage, loss of profits, or
costs incurred by You arising from the provision of Technical Support or assistance given by us pertaining to tax, VAT or completion or
related documents. Assistance given in this regard is not intended to, and shall not be deemed to, amount to advice on which reliance
should be placed.
4.8. Technical Support will be provided in connection with the Software detailed in the Statement of Work.
4.9. The following matters are expressly excluded from the Technical Support but may be provided subject to a separate agreement,
specification and fee arrangement in a Statement of Work: Support of any software, operating system, database, data transfer,
computer hardware or information technology equipment Training; general advice and consultancy including but not limited to
accountancy, tax, and business advice; System or accounts implementation; Data transfer services; Customer System support; Links
and integration with third party products; Delivery of software, or revisions, or upgrades; Site visits; Investigation into or corrections to
Data loss or corruption. Where we provide Hosting Services to you our obligations in connection with data loss are as set out in
Schedule 1 for Standard Hosting.
4.10. Our obligation to provide the Technical Support shall not extend to:
4.10.1. rectification of lost or corrupted data arising by reason other than Our negligence;
4.10.2. any supported Software which has been changed, altered, added to, modified or varied by anyone other than Us;
4.10.3. attendance to faults caused by Your failure to use the supported Software in accordance with the requirements of the
Documentation and/or documentation or manuals supplied with the supported Software, or caused by operator error or
omission;
4.10.4. attendance to faults attributable to faults in the Customer System or its use or interaction with other software with which the
Software is not compatible or its use or interaction with software or on equipment that We have not approved in writing.
CONSULTING SERVICES
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4.11. We will perform the Consulting Services specified in the applicable Statement of Work.
HOSTING SERVICES
4.12. We shall provide such Hosting Services requested by You which are agreed in a Statement of Work. Where You elect to receive
Standard Hosting the terms of Schedule 1 shall apply in addition to the terms in this Agreement.
aCLOUD™ SOLUTIONS
4.13. We shall provide the SaaS requested by You which is agreed in a Statement of Work. The terms of Schedule 3 shall apply to the
provision of SaaS in addition to the terms in this Agreement.
GENERAL
4.14. We will perform all Services using reasonable skill and care in accordance with good industry practices and will use appropriately
skilled and qualified personnel.
4.15. You agree that We will be relying upon the accuracy of all representations, statements, information, materials and documents (“Data”)
supplied by You in connection with the Services and that We shall be under no obligation to test, check or confirm the accuracy of any
Data prior to performing the Services unless set out in the Statement of Work. We accept no responsibility or liability whatsoever for or
resulting from any Data prepared and/or supplied by You or a third party on Your behalf.
4.16. You shall:
4.16.1. provide, where applicable, access to the areas in which the Services are to be performed at the Service Location, including
authorised access to the Customer Systems or systems licensed to You to enable the Our staff and associates to perform
the Services and so that We can ensure that You are complying with the terms of this Agreement;
4.16.2. provide, free of charge, appropriately qualified and experienced personnel familiar with the Customer Systems, equipment,
programmes and operations who shall reasonably co-operate with Our personnel to allow Us to fulfil Our obligations under
this Agreement and each Statement of Work if We request this from You;
4.16.3. make available, free of charge, such documentation, information, data and computer facilities (including but not limited to
data preparation facilities, storage and computer consumables) as We may reasonably require in the fulfilment of Our
obligations under this Agreement and each Statement of Work;
4.16.4. appoint a representative with responsibility for all matters relating to this Agreement and each Statement of Work; this
representative will be identified in the Statement of Work;
4.16.5. ensure that the Customer Systems comply with the agreed specification as set out in the relevant Statement of Work;
4.16.6. remain responsible for all actions and inactions of any third party provider directly in Your control or with whom You have a
contractual relationship and with whom We will be or are reliant upon to fulfil Our obligations under this Agreement or a
relevant Statement of Work;
4.17. Our ability to deliver the Services also depends upon Your full and timely cooperation, as well as the accuracy and completeness of
any information that You provide. We are not responsible for any loss suffered by You if You do not provide Us with this access,
cooperation and information. You accept that the very nature of the project may necessitate disruption to Your staff and business
processes in order to accommodate the implementation.
5. FEES AND PAYMENT
5.1. You agree to pay the fees for the Software, Documentation and Services without deduction or set off and in accordance with the terms
specified in each Statement of Work.
5.2. You must pay the Initial Fee and the Annual Licence Fees prior to Using the Software and You shall pay any subsequent Annual
Licence Fees in advance of the expiry of the current Licence. The Initial Fee and Annual Licence Fees are non-refundable.
5.3. We have the right to vary the Annual Licence Fees upon reasonable written notice to You provided that the percentage increase in the
Annual Licence Fees shall be within a reasonable tolerance of the percentage increase in the Consumer Price Index (CPI) in the
preceding 12 month period.
5.4. We reserve the right to increase the fees for Consultancy Services and/or the Support Fees once in any 12 month period on giving
thirty (30) days prior written notice to You.
5.5. Unless agreed in advance by the parties, all rates detailed in the Statement of Work do not include travel, accommodation,
subsistence and the cost of materials and third party services or reasonable out of pocket expenses. You shall reimburse Us for any
reasonable expenses that We necessarily incur in connection with the provision of the Services Such expenses and disbursements
shall be re-charged to You at cost, mileage rates to be calculated at a rate of £0.50 per mile. Services and mileage rates may be
revised by Us from time to time. Any such changes will be notified to You, either at the time that You request further services, or by
the distribution of the revised published rates.
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5.6. We reserve the right to suspend the supply and/or access to the Software, Documentation and/or Services to You where any amounts
owed under this Agreement are overdue until all such amounts have been paid in full (together with any accrued interest). Interest
shall be payable on overdue accounts at a rate of 4% per annum above the base rate of HSBC Plc from time to time from the due
date for payment until We receive the full amount and shall accrue at such rate after as well as before any judgement.
5.7. In the event that You cancel or postpone any Service(s) within five Business Days of the agreed start date then 100% of the fees will
be payable as a Cancellation Charge. If You cancel or postpone between six and nine Business Days of the agreed start date then
50% of the fees will be payable as a Cancellation Charge. Notwithstanding the foregoing, we may claim Cancellation Charges if you
cancel or postpone any Services prior to the agreed start date where we have incurred any costs or expenses or suffer any loss as a
result of your cancellation or suspension.
5.8. If We are delayed or impeded or obliged to spend additional time or incur additional expenses in the performance of any of Our
obligations under this Agreement by reason of Your act or omission or that of Your employees, agents, contractors or subcontractors
(including the provision by any such person of any incorrect or inadequate data, information or instructions) then, notwithstanding
anything else contained in this Agreement or Statement of Work, You will pay Us for any additional time that We spend and any
expenses that We reasonably incur in carrying out such obligations and which are caused or rendered necessary by such act or
omission and any target time specified for the performance by Us of any of Our obligations shall be extended accordingly.
5.9. You are required to make payment via the UK Direct Debit payment system and will complete the Direct Debit mandate. You
recognise and agree that by completing a Direct Debit Instruction We are authorised to debit the relevant fees, as set out in the
Statement of Work, from Your nominated account.
6. INTELLECTUAL PROPERTY RIGHTS AND OWNERSHIP
6.1. You acknowledge that all Intellectual Property Rights (including any new Intellectual Property Rights) arising out of or in connection
with the Software, Services and Documentation supplied belong at all times to Us or Our licensors.
6.2. Nothing in this Agreement shall transfer any Intellectual Property Rights in or arising from the Software, Services or Documentation to
You but that these shall remain vested in Us or Our licensors, and no rights to use any such Intellectual Property Rights are granted,
except as expressly stated in this Agreement or the relevant Statement of Work. If, notwithstanding this, any Intellectual Property
Rights in or arising from the Software, Services and Documentation are acquired by You (including any new Intellectual Property
Rights), You hereby assign (and to the extent that any such Intellectual Property Rights are not capable of such assignment, agree to
hold on trust) and agree to do all such things and sign all such documents as We may reasonably require in respect of the assignment
of all such Intellectual Property Rights to Us or Our licensors as may be appropriate.
6.3. You are permitted to make such copies of the Software as are reasonable required for the purposes of bona fide operational
purposes, security and backup only and shall ensure that such copies are marked as proprietary to, copyright of, and licensed by, Us.
No other copies may be made. You may not make any copies of the Documentation, manuals, or other documentation (including
electronic documentation) other than for use by Permitted Users without Our written permission.
6.4. Subject to clauses 6.7 and 6.8, We will indemnify You against all direct costs, claims, demands, expenses (including reasonable legal
costs) and liabilities of whatever nature incurred by or awarded against You arising out of or in connection with any claim that Your
use of the Software, Services, any Documentation, information, data, computer facilities or material that We supply, or any provision of
the Services, infringes a third party’s copyright or UK registered patent (effective at the date of this Agreement) (“Infringement Claim”).
6.5. We warrant that We are not aware that the Software, any Documentation, information, data, computer facilities or material that We
supply, or any provision of the Services or Your use of the same in accordance with the terms of this Agreement will infringe any third
party’s Intellectual Property Rights but We have not carried out any investigation into the same. We shall indemnify You against all
direct costs, claims, demands, expenses (including reasonable legal costs) and liabilities of whatever nature incurred by or awarded
against You arising out of or in connection with any breach of the warranty contained in this clause 6.5.
6.6. If an Infringement Claim is alleged or threatened against either You or Us, or if We believe that the Software, Services or the
Documentation or any part thereof may infringe any third party’s copyright or UK registered patent (effective at the date of this
Agreement), We may, at our sole option, (i) procure such licence, authorisation or consent as is necessary to enable Your continued
use of the Software and/or the Documentation; (ii) modify or replace the same as necessary to avoid infringement without any material
adverse effect to the functionality of the Software; or (iii) terminate this Agreement and/or the affected Statement of Work and refund
an amount equal to the Fees paid in respect of such Software to You.
6.7. We shall only be liable under the terms of this Agreement for an Infringement Claim or alleged Infringement Claim if (i) You promptly
notify Us of any infringement or alleged infringement of which You have notice; (ii) You make no admission as to liability or agrees any
settlement of such claim without Our prior written consent; (iii) You allow Us (or a relevant third party supplier), at Our expense, to
conduct and/or settle all negotiations and litigation arising from any claim or action relating to the alleged infringement; and (iv) You, at
Our expense, give Us (or a relevant third party supplier) such reasonable assistance as may be requested in such settlement or
negotiation.
6.8. We shall have no liability for any Infringement Claim or alleged Infringement Claim to the extent such claim (i) arises from possession,
use, development, modification, or operation of the Software (or part thereof) by You other than in accordance with the terms of this
Agreement or the relevant Statement of Work; (ii) failure by You to take any corrective action directed by Us; or (iii) is based upon any
item provided by You and incorporated into the Software at Your request.
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6.9. You shall indemnify Us against all costs, claims, demands, expenses (including reasonable legal costs) and liabilities of whatever
nature incurred by or awarded against Us arising out of or in connection with any claim that Our use of the Customer System pursuant
to this Agreement infringes the Intellectual Property Rights of any third party.
6.10. The Software is not developed or licensed for use in nuclear, aviation, mass transit, or medical application, or any inherently
dangerous application. You are prohibited from entering data into the data files or data tables from an application other than those
provided by the Supplier, in such a manner that may compromise the integrity of the data. If You are entering data directly into Our
data tables or files You must apply care and diligence and maintain a full audit trail of Your actions. If You use another third party
application, that reads and/or writes data to the Supplier database or tables, (other than a spreadsheet, wordprocessor, or Access
Transaction Broker application), to replace the function of an available module, then You will pay Us the Initial Fee and Annual
Licence Fee that would be chargeable to procure such a module. You will permit, and give assistance, at all reasonable times, to Us
to verify that the Software is being used within the terms of the Licence. You shall not (and shall procure that no third party shall)
publish any results of benchmark tests run on the software.
7. TERMINATION
7.1. If a party is in material breach of its obligations under this Agreement which is incapable of remedy or if capable of remedy, fails to
remedy the same within 30 days (unless otherwise agreed between the parties acting reasonably) of written notice to do so by the
other party, the other party may, without prejudice to its other rights and remedies and at its option terminate the Agreement or the
affected Statement of Work as a whole, or any affected element of the Software or Services provided under it.
7.2. If a party is in material breach of its obligations under any Statement of Work which is incapable of remedy or if capable of remedy,
fails to remedy the same within 30 days (unless otherwise agreed between the parties acting reasonably) of written notice to do so by
the other party, the other party may, without prejudice to its other rights and remedies and at its option terminate the affected
Statement of Work as a whole, or any affected element of the Software or Services provided under it.
7.3. Either party may terminate this Agreement with immediate effect on written notice if the other party is subject to an Event of
Insolvency.
7.4. Either party may terminate the Annual Licence at the end of the term of the current Annual Licence by giving not less than 90 days’
prior written notice to the other.
7.5. We may suspend and/or terminate the Technical Support immediately if You do not pay the Support Fees by the due dates.
7.6. The termination of this Agreement or any Statement of Work in whole or in part for whatever reason shall not affect any provision of
this Agreement which is expressed, or by its nature, implied to continue, survive or come into force in the event of such termination.
7.7. Upon terminationn of this Agreement or any Statement of Work in whole or in part for any reason other than pursuant to clause 7.4:
7.7.1. the parties shall (without prejudice to any other rights and remedies) promptly pay to each other all sums which are due or
outstanding in respect of part of the Agreement or Statement of Work that has been terminated; and
7.7.2. You shall cease all use of the Software and shall, at Our request, return or destroy as soon as reasonably practicable any
copies of the Software subject to such termination; and
7.7.3. unless necessary in order that We may continue to perform Our obligations, We shall cease all access to the Customer
Systems and shall promptly return all information, materials, documents and data in Our possession at the date of
termination to You.
8. LIMITATION OF LIABILITY
8.1. All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from
this Agreement.
8.2. Subject to clause 8.4, the total liability of either party in contract, tort (including negligence or breach of statutory duty),
misrepresentation, restitution or otherwise arising in connection with this Agreement or any Statement of Work shall be limited to an
amount equal to the fees paid to Us pursuant to the relevant Statement of Work under to which the liability arose.
8.3. Subject to clause 8.4, neither party shall be liable for any loss of profits, loss of business, depletion of goodwill and similar losses, loss
of anticipated savings, loss of goods, loss of contract or loss of use (whether direct or indirect) nor for any special, indirect or
consequential loss or damage suffered by the other in connection with this Agreement. If We provide Hosting Services to You under
this Agreement our liability in connection with the loss or corruption of data or information is as set out in Schedule 1 in respect of
Standard Hosting, in all other cases We shall not be liable for any loss or corruption of data or information, whether direct or indirect.
8.4. Nothing in this Agreement shall limit or exclude either party’s liability for death or personal injury resulting from negligence, fraud or
any other liability which may not be properly limited or excluded under applicable law nor in respect of the indemnities given in clauses
6.4 or 6.5.
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9. NON SOLICITATION
9.1. We each agree that for the period of six months from termination of this Agreement or a relevant Statement of Work neither You nor
We shall, without the prior written agreement of the other party, knowingly employ or engage on any basis or offer such employment
or engagement to any staff of the other party who have been associated with the implementation of the Software or the provision of
the Services provided that employment or engagement of any member of the other’s staff pursuant to a bona fide recruitment
campaign shall not be a breach of this clause.
9.2. Any consent given in accordance with clause 9.1 shall be subject to the party seeking consent paying the other party an amount equal
to one year’s gross salary of the person employed (calculated as at the date of termination of that staff member’s employment) and
the parties acknowledge and accept that this payment is by way of liquidated damages and that it is a genuine pre-estimate of the
likely loss a party will suffer as a result of the other party engaging a member of its staff.
10. DISPUTES
10.1. If a dispute arises between You and Us in relation to any matter which cannot be resolved between the representatives for each of us
in relation to the applicable Statement of Work, in the first instance each You and We shall arrange for a senior representative to meet
solely in order to resolve the matter in dispute. Such meetings shall be conducted in such manner and at such venue (including a
meeting conducted over the telephone) as to promote a consensual resolution of the dispute in question.
10.2. If the meeting referred to in clause 10.1 does not resolve the matter in question then we will attempt to settle it by mediation in
accordance with the Centre for Effective Dispute Resolution ("CEDR") Model Mediation Procedure or any other model mediation
procedure as agreed between us. To initiate a mediation either of us may give notice in writing (a "Mediation Notice") to the other
requesting mediation of the dispute and shall send a copy thereof to CEDR or agreed equivalent mediation organisation asking them
to nominate a mediator. The mediation shall commence within 28 days of the Mediation Notice being served. Neither of us will
terminate such mediation until each of us has made its opening presentation and the mediator has met each of them separately for at
least one hour. Thereafter paragraph 14 of the Model Mediation Procedure will apply (or the equivalent paragraph of the other agreed
model mediation procedure). Neither of us will commence legal proceedings against the other until 30 days after such mediation of
the dispute in question has failed to resolve the dispute. Each of us will co-operate with any person appointed as mediator providing
him with such information and other assistance as he shall require and will pay his costs, as he shall determine or, in the absence of
such determination, such costs will be shared equally.
11. DATA PROTECTION
11.1. If We process any personal data on Your behalf when performing Our obligations under this Agreement, we each record our intention
that You shall be the data controller and We shall be data processors and in any such case:
11.1.1. You shall ensure that You are entitled to transfer the relevant personal data to Us so that We may lawfully process the
personal data in accordance with the Agreement on Your behalf;
11.1.2. We shall process the personal data only in accordance with the terms of the Agreement and any instructions reasonably
given by You from time to time and You shall indemnify and hold Us harmless against any claims made against Us as a
result of acting in accordance with Your instructions;
11.1.3. We shall not do anything which We reasonably understand would cause You to be in breach of the Data Protection Act
1998; and
11.1.4. each of us shall take appropriate technical and organisational measures against unauthorised or unlawful processing of
the personal data or its accidental loss, destruction or damage.
12. GENERAL
12.1. Any variation/amendment of this Agreement must be in writing, referenced to this Agreement, and signed by an authorised
representative of both parties.
12.2. Each provision of this Agreement shall be construed separately and notwithstanding that the whole or any part of any such provision
may be held by any body of competent jurisdiction to be illegal invalid or unenforceable the other provisions of this Agreement and the
remainder of the provision in question shall continue in full force and effect. Each of us 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.
12.3. We each confirm our intent not to confer any rights on any third parties by virtue of this Agreement and accordingly the application of
the Contracts (Rights of Third Parties) Act 1999 shall not apply to this Agreement or a Statement of Work.
12.4. The construction, validity, and performance of this Agreement shall be governed by the laws of England and Wales and the parties
submit to the exclusive jurisdiction of the English courts.
12.5. This Agreement constitutes the entire agreement between You and Us with respect to the subject matter of this Agreement and
supersedes any and all prior agreements, statements, purchase orders, covenants, understandings, representations, warranties and
undertakings, whether written or oral, made between us regarding such matters but not embodied in this Agreement, save that the
foregoing shall not exclude any misrepresentation which was made fraudulently and/or to rescind this Agreement.
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12.6. Unless You have ticked the option to decline the use of the email information, then You consent to receiving email from Us relating to
Us, Our software, services and business information. You may withdraw Your consent at any time by notifying Us in writing. We will
cease to send such emails within 28 days of receipt of the notice.
12.7. You agree that We may refer to You as a client and as a user of Software in Our marketing and public relations materials.
12.8. If due performance of this Agreement by either party is affected in whole or in part by any reason or any event, delay or failure beyond
the reasonable control of such party, such party shall give prompt notice to the other party and shall be under no liability for any loss,
damage, injury, or expense of whatever kind, howsoever caused, suffered by the other party due to the affected performance. Such
party shall use reasonable efforts to avoid or overcome the causes affecting performance as soon as it becomes practical to do so.
12.9. Neither You nor We shall assign, transfer, charge, hold on trust for another or deal in any other manner with any of its rights or
obligations under this Agreement, or purport to do so, or sub-contract any or all of its obligations under this Agreement without the
prior written consent of the other party, such consent not to be unreasonably delayed or withheld.
12.10. Any failure to exercise or delay by either of us in exercising a right or remedy arising in connection with this Agreement shall not
constitute a waiver of such right or remedy or of any other rights or remedies.
12.11. Nothing in this Agreement shall constitute a partnership, joint venture, representative or agency relationship between us or be
construed or have effect as constituting any relationship of employer and employee between You and Us. Neither of us shall have the
authority to bind or pledge the credit of, or oblige, the other in any way without obtaining the other’s prior written consent.
12.12. Neither of us shall without the prior written consent of the other party (during and after termination of this Agreement) use (other than in the
performance of this Agreement) or disclose to any other person any Confidential Information of the other party, except that any obligations
contained in this clause shall not prevent any disclosure of Confidential Information which is required (though only to the extent required) by
law, court order or any legal or regulatory authority, which is required to comply with the rules of any relevant stock exchange, or disclosure to a
party’s professional advisors, acting in their capacity as such.
13. NOTICES
13.1. Any document notice claim or demand to be given served or made by either party to the other in connection with this Agreement shall
be sufficiently given served or made by delivering or sending the same by hand or courier, pre-paid first class recorded delivery, or
email to the registered office or the aforesaid address of the party to whom it is addressed.
13.2. Any such document notice claim or demand shall be deemed to be given served or made:
13.2.1. if delivered by hand, at the time of delivery;
13.2.2. if sent by courier, at the expiration of 12 hours of the same having been despatched;
13.2.3. if posted, at the expiration of 2 Business Days after the envelope containing the same shall have been posted; or
13.2.4. if emailed, at the time send unless a notification of failure to send or deliver is received.
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SCHEDULE 1
STANDARD HOSTING SERVICES
In the event that You have elected to receive Standard Hosting the terms contained within this Schedule shall apply as if set out in the main body
of the Agreement.
1. DEFINITIONS
In this Schedule the following words shall have the following meanings:
Acceptable Use Policy means the policy concerning the use of Standard Hosting via or which involves access to the internet
displayed on the our website from time to time (attached as Annex 1);
Data Centre Policies means policies concerning the use of data centres operated by Third Party Providers displayed on Our
website from time to time;
Fees means the amount payable by You for the provision of the Standard Hosting as set out in the applicable
Statement of Work;
Future Service Provider means any service provider or service providers that You appoint on the termination of this Schedule (or any
part thereof) to replace Us in providing any or all of the Standard Hosting (or similar services) or part thereof;
Hardware means all physical telecommunications, networking and computer equipment (including but not limited to
switches, routers, cables, servers, racks, cabinets and peripheral accessories) used to deliver the Standard
Hosting;
Hosting Software means the software, if any, used by Us in order to provide the Standard Hosting;
Service Commencement
Date
means the date upon which the Hosting commences;
Standard Hosting means the hosting services provided under this Schedule which shall be on a shared server.
Third Party Providers means providers of certain facilities, including data centres, which are owned and operated by third parties
and consultants engaged by Us.
2. SCOPE
2.1. The terms in this Schedule are in addition to the terms of the main body of the Agreement.
2.2. You acknowledge and accept that We may subcontract all or any part of the supply of the Standard Hosting to a Third Party Provider
and that this paragraph 2.2 constitutes your prior written consent under clause 12.9 of the main body of the Agreement. We will be
responsible and liable for any such Third Party Provider’s performance of the Standard Hosting. We may change the Third Party
Provider at any time provided that we give you prior written notice.
3. TERM
The initial term for the Standard Hosting shall be as specified in the Statement of Work which shall commence the Service
Commencement Date and thereafter shall automatically renew for periods of twelve (12) months (each a “Secondary Term”), unless
either of us gives the other notice to terminate the Standard Hosting not less than ninety (90) days prior to the expiry of the Initial Term
or any Secondary Term.
4. OUR OBLIGATIONS
4.1. We will use our reasonable commercial endeavours to ensure that the Standard Hosting is performed in accordance with the terms
and conditions of this Schedule, the applicable Statement of Work and any service levels set out in Annex 2 to this Schedule 1.
4.2. We may, in Our sole discretion and in addition to Our other rights under this Schedule, suspend relevant Standard Hosting while any
Acceptable Use Policy breach allegations are investigated.
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4.3. We shall use reasonable commercial endeavours to ensure that the Standard Hosting is provided by appropriately qualified personnel
who shall act at all times in a timely and efficient manner, in good faith and with due diligence.
4.4. The Standard Hosting shall be provided on a shared virtual server. We shall use our reasonable commercial endeavours to provide
the Standard Hosting during the Initial Term and any Secondary Term(s) but You acknowledge and accept that no service level
agreement applies to the Standard Hosting and no service credits are available to You for any failure of the Standard Hosting. We
can provide hosting services on a dedicated server but these are at additional cost and further terms and conditions apply
4.5. We reserve the right to move the Standard Hosting, including (but not limited to) to different servers, at any time at our discretion.
5. YOUR OBLIGATIONS
5.1. You shall:
5.1.1. comply with all terms of this Schedule, and shall not use the Standard Hosting or any Hardware for any unlawful purpose;
5.1.2. co-operate with Us fully in relation to all matters relating to the Standard Hosting;
5.1.3. appoint and make available a representative to liaise with Us in relation to any matter concerning the Standard Hosting;
5.1.4. provide, in a timely manner, all information and resources which are reasonably requested or required by Us in order to
provide the Standard Hosting;
5.1.5. ensure that all information that You provide is complete, up-to-date and accurate in all material respects;
5.1.6. ensure that any Hardware or other equipment (if any) that You provide is in good working order and suitable for the
purposes for which it is to be used in relation to the Standard Hosting and conforms to all applicable law and regulations;
5.1.7. provide Us with full copies of any maintenance or other instructions issued by third party manufacturers in respect of any
Hardware provided by You under this Schedule, including any revisions or updates;
5.1.8. provide Us and Our personnel with such access to Your premises and to Your relevant information, records and other
material as is necessary to provide the Standard Hosting or exercise Our rights under the Schedule;
5.1.9. strictly comply with the Acceptable Use Policy, the Data Centre Policy and any other lawful instructions and directions
which may be given or issued by Us, our Affiliates or any third party provider in relation to the Standard Hosting, including,
but without limitation, any access and security requirements in connection with any premises provided by Us or any third
party provider;
5.1.10. not make any statement, warranty or representation about the Standard Hosting to any third party, and ensure that Your
customers who You allow to use the Standard Hosting (provided that You are licensed to do so) complies with the terms of
the Agreement;
5.1.11. not perform any penetration testing (or any other form of intrusive or non-intrusive security/stress testing) without Our prior
written authorisation
5.1.12. ensure that appropriate safety and security systems and procedures are maintained and enforced at Your premises to
prevent unauthorised access to any and all Standard Hosting, Hardware and related networks or resources, in accordance
with best industry practice.
5.1.13. use the Standard Hosting in compliance with applicable law and the Acceptable Use Policy.
5.1.14. remain responsible for the use of the Standard Hosting under Your control, including any use by third parties (whether
fraudulent or invited by You).
5.2. You are solely responsible for procuring and maintaining network connections and telecommunications links from Your systems to
enable Us to provide the Standard Hosting and You acknowledge and accept we shall not be liable for any delays or failures resulting
from or relating to Your network connections or telecommunications links or caused by the internet.
5.3. Notwithstanding any other provision of this Agreement We shall not be liable for any costs, charges, claims, losses, damages or
expenses of any kind whatsoever, in the event that the performance of the Standard Hosting or the fulfilment of Our other obligations
under this Schedule, is prevented, hindered or delayed by Your act or omission (including those of Your employees, consultants,
subcontractors or agents) including any failure to provide required Software or Hardware in accordance with any implementation plan
or agreed timescales.
6. CHANGE CONTROL
6.1. Either You or We may at any time discuss a Change of the Standard Hosting with the other.
6.2. The parties shall meet as soon as reasonably practicable following the issue of a change control notice to discuss the requested
Change in good faith in order to settle and agree the terms of the Change.
6.3. If the we cannot agree the terms of a Change within a period of twenty (20) Business Days of the issue of the change control notice,
or such other time period as is agreed between us in writing, the Change shall be rejected and the Standard Hosting shall continue
unaffected.
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7. FEES
You shall pay the Fees to Us as set out in the Statement of Work.
8. LIABILITY
Our liability to You in connection with Standard Hosting is as set out in the framework agreement save that in the event of any loss or
corruption of data or information relating to the Standard Hosting we shall be liable to restore your information or data to the last back
up on Our systems. This shall be your sole and exclusive remedy for any such loss or corruption. You acknowledge and accept that
you are responsible for ensuring that all data that you provide is accurate, correct and not corrupted and we shall not be liable in
connection with the accuracy or quality of the data or information provided by You.
9. DATA MIGRATION SERVICES
Following termination of this Statement of Work for any reason, we may, if agreed between You and Us, provide data migration
services to You or a third party service provider elected by you and shall notify You in writing following completion of the removal of
Your data from the hosting environment. All data migration services are chargeable at our then current daily consulting day rates and
you shall pay invoices in respect of such charges within 30 days of the invoice date.
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Annex 1
Acceptable Use Policy
1. POLICIES REGARDING ACCEPTABLE USE
The Internet Access service policies ("Policies") set forth below defines acceptable practices while using the Standard Hosting via or
which involve access to the internet (the "Services"). By using the Services, You acknowledge that You have read, understood, and
agrees to abide by these Policies. In addition, You acknowledge that You will be responsible for violations of these Policies by third
parties that have gained access to the Services through You. While it is not Our intent to control or monitor Your on-line experience or
the content of Your on-line communications, We or our approved subcontractor may edit or remove content that We deem to be in
violation of these Policies or that We otherwise deem harmful or offensive upon giving notice to You. These Policies apply to all aspects
of the Services, including e-mail, USENET postings, chatting, and browsing.
2. GENERAL
2.1 These Policies are designed to assist in protecting the Services, all of our customers and those of our sub-contractors and the Internet
community as a whole from improper and/or illegal activity over the Internet. All of our customers are generally expected to behave in a
reasonable fashion and to adhere to commonly accepted practices of the Internet community.
2.2 For the most part, simply exercising good judgment and common sense while using the Services should enable You to remain within the
purview of acceptable conduct as further described in these Policies. The categories listed below are intended merely to serve as
guidelines regarding appropriate and inappropriate conduct; the list is by no means exhaustive and should not be interpreted as such.
3. OUR RIGHTS
3.1 If You engage in conduct while using the Services that is in violation of these Policies or is otherwise illegal or improper, We reserve the
right to invoke the provisions of the Agreement in relation to Your access to the affected element(s) of the Services.
3.2 We do not make any promise, nor do we have any obligation, to monitor or police activity occurring via the Services and will have no
liability to any party, including You, for any violation of these Policies.
4. UNAUTHORISED ACCESS/INTERFERENCE
You may not attempt to gain unauthorised access to, or attempt to interfere with or compromise the normal functioning, operation, or
security of any of Our networks, systems, computing facilities, equipment, data, or information. You may not use the Services to engage
in any activities that may interfere with the ability of others to access or use the Services or the Internet. You may not use the Services to
monitor any data, information, or communications on any network or system without authorization. You may not attempt to gain
unauthorized access to the user accounts or passwords of other users.
5. UCE/SPAMMING/MAILBOMBING
You may not use the Services to transmit excessive volumes of unsolicited commercial e-mail messages. Any unsolicited commercial e-
mail messages or a series of unsolicited commercial e-mail messages constitutes Unsolicited Commercial E-mail "UCE" and is
prohibited. In addition, "spamming" or "mailbombing" is also prohibited. Use of the service of another provider to send UCE, spam or
mailbombs, to promote a site hosted on or connected to Our network or services (or that of our subcontractors), is similarly prohibited.
6. SPOOFING/FRAUD
You may not attempt to send e-mail messages or transmit any electronic communications using a name or address of someone other
than Your own for purposes of deception. Any attempt to impersonate someone else by You by altering Your source IP address
information or by using forged headers or other identifying information is prohibited. Any attempt by You to fraudulently conceal, forge,
or otherwise falsify Your identity in connection with Your use of the Services is prohibited. This section 6 shall not prevent You from
undertaking "ethical hacking" whereby You are aware of the hacking attempt, provided that You have notified Us in advance of such
activity.
7. E-MAIL RELAY
Any use of another party's electronic mail server by You to relay e-mail without express permission from such other party is prohibited.
8. USENET POSTINGS
All postings by You to USENET groups must comply with that group's charter and other policies. You are prohibited from cross posting
to unrelated news groups or to any news groups where the post does not meet that group's charter. Continued posting of off-topic
messages, including commercial messages (unless specifically invited by charter), is prohibited.
9. ILLEGAL ACTIVITY
You agree to use Our Services only for lawful purposes. Use of the Services for transmission, distribution, retrieval, or storage of any
information, data, or other material in violation of any applicable law or regulation (including, where applicable any tariff or treaty) is
prohibited. This includes, without limitation, the use or transmission of any data or material protected by copyright, trademark, trade
secret, patent, or other intellectual property right without proper authorization and the transmission of any material that constitutes an
illegal threat, violates export control laws, or is obscene, defamatory, or otherwise unlawful.
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10. OTHER PROHIBITED ACTIVITIES
10.1 You are also prohibited from the following activities:
10.1.1 attempting to intercept, redirect, or otherwise interfere with communications intended for others; and
10.1.2 intentionally transmitting files containing a computer virus or corrupted data.
10.2 Any other inappropriate activity or abuse of the Services (brought to the attention of any subcontractor), whether or not specifically listed
in these Policies, may result in Us invoking the provisions of clause 28.3 in relation to Your access to the affected element(s) of the
Services.
11. COOPERATION WITH INVESTIGATIONS
You and We will cooperate with appropriate law enforcement agencies and other parties involved in investigating claims of illegal or
inappropriate activity.
12. PRIVACY
We make no guarantee regarding, and assumes no liability for, the security and integrity of any data or information that You transmit
over the Internet, including any data or information transmitted via any server designated as "secure."
13. CONTENT OF THE INTERNET
We provide only access to the Internet. We do not operate or control the information, services, opinions or other content of the Internet.
You agree that You shall make no claim whatsoever against Us relating to the content of the Internet or respecting any information,
product, service or software ordered through or provided by virtue of the Internet.
14. MODIFICATIONS
We reserve the right to modify these Policies from time-to-time at Our sole discretion. We will notify You of any such modifications
either via e-mail or by posting a revised copy of the Policies on our website.
15. MISUSE OF SERVICES
15.1 We reserve the right, where reasonably required, to install and use, or to have You install and use, any appropriate devices to prevent
violations of these Policies, including devices designed to filter or terminate access to the Services. We shall consult with You prior to
installing, or requiring the installation of, any such devices.
15.2 If You become aware of any violation of these Policies by any person, including third parties that have accessed the Services through it,
You shall promptly notify Us.
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STATEMENT OF WORK
THIS STATEMENT OF WORK is made on ______________________
PARTIES:
ACCESS UK LIMITED (registration no. 2343760) whose principal place of business is at The Old School,
Stratford St Mary, Colchester CO7 6LZ (“We”)
AND
[CUSTOMER NAME] whose principal place of business/registered office is at [CUSTOMER ADDRESS] (“You”)
This Statement of Work is for the thankQ Solutions specified in the attached Annex.
This Statement of Work is subject to the terms of our standard Framework Agreement and additional terms in the
attached Annex.
By signing this Statement of Work you accept the terms of the Framework Agreement and any additional terms
set out in this Statement of Work and the Annex attached. If there is any conflict or inconsistency between any
provision of the Framework Agreement and any applicable Annex then, provided that it is specifically stated the
terms of that Annex, the terms of the Annex shall prevail, pursuant to clause 2.5 of the Framework Agreement,
but only to the extent of such conflict.
The thankQ Solutions are Access Software, as defined in the Framework Agreement unless they are modified by
us as part of Consultancy Services for you in which case they shall be Configured Software.
SIGNED BY:
Signed on behalf of [CUSTOMER] Signed on behalf of Access UK Limited
Signature Signature
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Title Title
Date Date
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Statement of Work - Annex 1
Software
User Licence
Permitted users of the Access software:
As per proposal
Software Module Initial Licence Fee Annual Licence Fee
Software licences as per proposal
Payment Terms As per proposal
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Statement of Work – Annex 2
Technical Support
Payment Terms
As per proposal
Detail Period from/to Charge £
Technical Support – Year 1 TBC As per proposal
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Statement of Work – Annex 3
Consulting Services
Payment Terms As per proposal.
Detail Charge £
As per services in proposal
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Additional Terms
1. In the event that You have elected to receive thankQ Solutions, the terms contained within this Annex shall apply as if set out in the main
body of the Framework Agreement.
2. In this Annex the definitions are as set out in the Framework Agreement and:
“Agreement” means the Framework Agreement together with these additional terms;
“Progress Meetings” means a meeting or telephone conference referred to in clause 4.2.1, the number and frequency of which shall
be as set out in the Project Plan.
“Project Plan” means the plan which shall be produced by us for the provision of any Consultancy Services ordered by you in
connection with the thankQ Solutions which may include a Specification;
“User Acceptance Tests” means the test to be carried out in order to determine whether the thankQ Solutions perform in accordance
with the business processes of the agreed Specification.
USEAGE
3. Pursuant to clause 2.5 of the Framework Agreement, it is hereby agreed that clause 3.6 of the Framework Agreement shall not apply to the
thankQ Solutions. The Licensee can Use the thankQ Solutions to create and service one live database and one for training/testing. thankQ
Solutions may be used in additional non-live databases exclusively for training testing or disaster recovery purposes. The Licence can be
extended to service additional live databases if you purchase additional Licence components from us as agreed in a separate Statement of
Work.
CONSULTANCY SERVICES AND CONFIGURED SOFTWARE
4. The terms of this clause 4 shall apply where we are providing Consultancy Services and the thankQ Solutions are Configured Software:
Progress Meetings
4.1. For large projects, We shall, within a reasonable period following execution of this Statement of Work, produce a Project Plan. You
shall, within 7 days of receipt of the Project Plan give your acceptance of it or your reasonable amendments. If you fail to provide
reasonable amendments or acceptance within this time period the Project Plan shall be deemed accepted. If you make reasonable
amendments to the Project Plan we shall consider them and give our acceptance or further amendments to you within a reasonable
period. This process shall be repeated until such time as the Project Plan is agreed between the parties or otherwise deemed
accepted.
4.2. For large projects, We shall appoint a project manager for the Consultancy Services who will be responsible for:
4.2.1. organising and attending Progress Meetings at which the Parties will review the report referred to in clause 4.3 and
progress generally and will attempt to resolve any problems;
4.2.2. providing all information reasonably required by you for the performance of its obligations and seeking from you any infor-
mation or directions reasonably required by us for the performance of our obligations; and
4.2.3. attending any other meetings reasonably called by you (including meetings with your other suppliers), attendance of which
will be charged on a time and materials basis.
4.3. The project manager shall prepare a progress report in an agreed format and deliver it to you in reasonable time for discussion at
each Progress Meeting. This report will include a summary of progress in relation to the Project Plan, together with such other
matters as you may reasonably require.
Acceptance Testing
4.4. You shall, within the timeframe specified within the Project Plan, supply us with test data which, in your reasonable opinion, is suitable
to test whether the Configured Software performs in accordance with the Specification, together with the results expected to be
achieved by processing such test data on the Configured Software running on the Customer System. We shall not be entitled to
object to such test data or expected results unless we can demonstrate to the you that they are not suitable to test whether the
Configured Software operates in accordance with the Specification, in which event you shall make such amendments to such test
data and expected results as may be reasonably necessary;
4.5. You shall, within the timeframe specified within the Project Plan write and undertake your own User Acceptance Tests using the
Configured Software on the Customer System. We shall not be entitled to object to such tests or expected results unless we can
demonstrate that they are not suitable to test whether the Configured Software operates in accordance with the Specification, in which
event you shall make such amendments to the User Acceptance Tests as may be reasonably necessary;
4.6. You shall accept the Configured Software immediately upon its satisfying the User Acceptance Tests by achieving the expected
results;
4.7. The Configured Software shall not be deemed to have failed the User Acceptance Tests by reason of any failure to provide a facility
or function not specified in the Specification;
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4.8. If the Configured Software shall fail to pass the User Acceptance Tests , we will promptly undertake any necessary rework and then
repeat tests shall be carried out on the same terms and conditions within a reasonable time thereafter and if such repeat tests
demonstrate that the Configured Software is still not in accordance with the Specification, then you may, by written notice to us, reject
the Configured Software as not being in conformity with this Statement of Work in which event this Statement of Work shall
automatically terminate and we shall refund to you all sums previously paid to us in respect of the Configured Software and you shall
have no further right or remedy in this regard;
4.9. Notwithstanding anything else contained in this clause 4, we shall be entitled (provided that we have complied with our obligations
under this clause 4) at any time to serve written notice on you requiring you to identify any part of the Specification which the
Configured Software does not fulfil. If you shall fail to identify in writing to us within 14 days after the receipt of such notice any part of
the Specification which the Configured Software does not fulfil then you shall be deemed to have accepted the Configured Software.
4.10. If you commence live running of the whole or any part of the Configured Software (as distinct from acceptance testing) at any time
without our prior written consent then you shall be deemed to have accepted the Configured Software.
4.11. If any delay in complying with the foregoing testing procedure is demonstrably due wholly or mainly to your fault, then you shall be
liable to pay us for any costs and expenses that we incur as a result of such a delay.
BACK UP
5. It is your responsibility to ensure that you complete back ups of the thankQ Solutions on a daily basis to an extent that reflects your expectation
of recovery in the event of a loss of or corruption of data or information and in any event, not less than once in any 24 hour period. You
acknowledge and accept that our liability in connection with the loss or corruption of any data is as set out in the Framework Agreement and that
you are solely responsible for ensuring that all data that you provide is accurate, correct and not corrupted.
TECHNICAL SUPPORT
6. Technical Support for the thankQ Solutions is provided in accordance with the terms of the Framework Agreement and subject to the
payment of the appropriate Technical Support Fee. Technical Support for thankQ Solutions includes:
6.1. Answers to training and ‘how to’ questions – this is for occasional use and is not a replacement for training. We reserve the right to
refuse this service until the appropriate training has been received in the event of this feature being abused.
6.2. Resolution of technical issues
6.3. Locally held versions of the thankQ Solution and database design so that We can reinstall should Your hardware fail. Please note
that We hold a recent backup of Your data to facilitate Technical Support for the thankQ Solutions, but this is not a replacement for
current backups that should be held by You.
6.4. Advice on maintaining and managing the thankQ Solutions
6.5. Advice on best use of thankQ Solutions features
6.6. Upgrades to resolve bugs or problems
6.7. Upgrades to the installation kit and thankQ Solutions to support Microsoft Windows and Microsoft Office upgrades to Your PCs (You
must notify Us well in advance of the upgrade so that We can prepare a new kit in time).
6.8. Advice on, although not assistance with, upgrades of server operating system and database software
7. In addition to the items listed in clause 4.9 of the Framework Agreement, the following things are specifically excluded from Technical
Support for thankQ Solutions: supporting hardware for any machines (except for hosted servers), internet connection, firewalls and local
networking, supporting third party software products, including Microsoft Office (except where its use is required to fulfil a function of the
thankQ Solution), anti-virus software, and backup software; supporting printers, except where drivers are required for hosted solutions;
providing replacement or upgrade of server hardware or software, including operating system and database software; or writing of specific
reports or power searches.
8. Requests for Technical Support made outside of Support Hours will logged when the support desk re-opens.
9. Requests for Technical Support for thankQ Solutions should be made:
By telephone, using our dedicated support line during Support Hours (+44 (0) 845 017 7039).
To our answer-phone service outside of Support Hours (+44 (0) 1206 322 575).
By email ([email protected]).
The Website can be used for call logging and tracking open calls.
10. Where a Request for Technical Support is made, the person logging the call should:
Ensure that they have received the necessary training in the subjects concerned
Understand the Client’s business procedures relevant to the call
Understand the technical environment; network, operating system and security
Understand the installation and setup of the thankQ Solution and be competent in the use of the version of Microsoft Windows
installed sufficiently to task swap, cut and paste and drag and drop. Where the thankQ Solution is linked to third party software, they
must also be familiar with the installation of that software.
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Be able to provide repeatable steps to recreate the problem, along with any error messages and screen shots as required
Indicate how they would like the problem to be resolved, along with timescales
11. We shall use reasonable commercial endeavours to respond to logged requests for Technical Support for thankQ Solutions as follows:
Type Description Target Response Levels
Level 1
Entire System Failure: all users affected Responded to and started within 1 hour, addressed by a suitable technical specialist immediately. If the Call is not resolved within 4 hours from initial response it will be escalated to Senior Management to review and aid resolution.
Level 2
Business critical process failure: key user(s) affected
Responded to within 1 hour. Started within 4 hours. If the Call is not resolved within 8 hours from initial response it will be escalated to a senior technical specialist. If the Call is not resolved within 12 hours from initial response it will be escalated to a director.
Level 3
A non business critical feature is failing / an alternative solution may be available
Responded to within 1 hour. Started within 8 hours. Final resolution timescales are negotiated with the Client depending on any alternative solutions and any time critical aspects of the Call. thankQ will aim to resolve these Calls within 5 working days.
Level 4
Development Request Responded to within 8 hours. Development time to be agreed and allocated.