UpCo Technologies LIMITED (registration no.698082) whose principal place of business is at 56B Blackthorn Road, Sandyford Industrial Estate, Sandyford, Dublin 18, D18 VH36 (“We”, “Us”, or “Our”); AND
CUSTOMER NAME as set out on the applicable (attached) Statements of Work (‘You’, ‘Your’,)
each a “party” and collectively the “parties”.
(A) We are a provider of software (including software as a service) technical support and other related 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 and services by Us to You, as set out in a Statement of Work.
(D) The services to be carried out are on a time and materials basis or on the basis of a “User Guide” (as applicable).
IT IS AGREED AS FOLLOWS:
DEFINITIONS AND INTERPRETATIONS
In this Agreement (including the Statements of Work and Annexes) the following expressions shall have the following meanings:
Pie Cloud Software - means software components or modules that are owned by Us and made available under this Agreement either on premise or in the cloud and specified in the applicable Statements of Work;
Pie Cloud Support Plans - means any packaged Support service that is specified in the Statement of Work;
Agreement - means these Terms and Conditions (including Schedule 1) and each Statements of Work (and its Annex or Annexes);
Annex - means an annex to a Statement of Work setting out the details of the Software and/or Service provided and any additional terms;
Annual License Fee - means the fee payable for the License in each 12 month period, as set out in clause 4 and the relevant Annex (as may be amended from time to time in accordance with clause 4.3);
Business Days - means Monday to Friday excluding Bank holidays and public holidays in the relevant jurisdiction;
Business Hours - means the hours of 0900 to 1700 (GMT) on Business Days;
Cancellation Charge - means any cancellation charges set out in clause 4.5;
Configured Software - means software code changes and additions to Software specifically developed or modified or written by Us for You;
Confidential Information - means any information, however conveyed or presented that relates to the business, affairs, operations, customers, processes, budgets, pricing policies, product information, strategies, developments, trade secrets, know-how, personnel and suppliers of the disclosing party, together with all information derived by the receiving party from any such information and any other information clearly designated by the party as being confidential to it (whether or not it is marked “confidential information”), or which ought reasonably be considered to be confidential;
Consulting Services - means the consultancy services specified in an applicable Statement of Work and may include, but not be limited to, User Guide, training, implementation, configuration, integration and or general IT consultancy services;
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 or SaaS (as applicable);
Effective Date - has the meaning set out clause 1.7.
End User - means the person who uses the Software or SaaS (as applicable);
EULA - means an end user license agreement for Third Party Software;
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 analogous event occurs in respect of a party in any jurisdiction to which that party is subject;
Fees - means the Annual License Fee, Initial License Fee, Support Fees, SaaS Fee, and fees for Services or any of them and any other fees, charges costs and expenses paid or payable under this Agreement by You;
User Guide - means (if available) a defined implementation process for Software/SaaS as set out in a Statement of Work and any documentation provided by Us to You relating to the roll out process.
Further Term - Further Term means a further term of 12 months commencing at the conclusion of the Initial Term or any Further Term;
Hosting Infrastructure Services - means the deployment set out in the relevant hosting Statement of Work;
Initial License - means, if applicable, the permission granted to the Licensee to hold the Software only but not access or use the Software;
Initial Term - means 24 months from the date of this Agreement or such other period as specified in a Statement of Work;
Initial License Fee - means the fee for the Initial License (if applicable) as set out in the relevant Statement of Work;
Installation Date - means the earlier of the date that the software is installed or the date which is 90 days after the date of this Agreement.
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;
License - License means the permission granted to the Licensee to Use the Software or SaaS (as applicable) on the terms of this Agreement during the period for which the Annual License Fee has been paid;
License Term - means the Initial Term plus any Further Term;
Licensee - means You and/or the Permitted Users;
Managed Server - means a hardware device that is hosted in a data centre by Us and provided to the Client for their use. We provide hardware support, rack space, power and network connectivity for such servers via an external hardware support provider which may be the vendor or an accredited third party.
Payroll Services - means payroll services as set out in the applicable Statement of Work;
Payroll Managed Service Fees - means the monthly amount charged for a Payroll Services set out in a Statement of Work;
Permitted Users - means the permitted users of the Software (as set out in the Statement of Work);
Relevant Requirements - as set out in “The criminal Justice Act 2018”.
SaaS - means the cloud based online software application as set out in the SaaS Statement of Work;
SaaS Fees - SaaS Fees means the fees due for the SaaS as set out in the SaaS Statement of Work;
Service Location - means the location(s) where the Services will be provided (as set out in the Statement of Work);
Services - means, as applicable, the Technical Support, Consulting Services, Hosting Infrastructure Services, Managed Services, Variable Consumed Services and Hardware Support to be provided by Us and as set out in Statements of Work;
Software - means Pie Cloud Software, Configured Software and Third Party Software specified in an applicable Statement of Work but, for the avoidance of any doubt, not including SaaS;
Specification - means each specification for the Software or SaaS (as applicable) as set out in the relevant Documentation and/or the Statement of Work;
Statement(s) of Work - means each statement of work specifying the Software, SaaS and/or Services to be supplied under this Agreement (together with any Annex), which forms part of this Agreement and shall be attached to it. For the avoidance of doubt, an order form signed by You will be a Statement of Work for the purposes of this Agreement;
Support Fee - means either the fee for the Technical Support as set out in a relevant Statement of Work. or in the case of UpCo Success Plans the UpCo Success Plan Fee;
Technical Support - means technical operating support in relation to the operation of the Software and/or use of the SaaS;
Terms and Conditions - means these framework agreement terms and conditions;
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;
Transfer Regulations - means the Transfer of Undertakings (Protection of Employees’ Rights on Transfer of Undertakings) Regulations 2003 and any successor legislation for Ireland, or the equivalent for the relevant jurisdiction;
Variable Consumed Services - means services which are chargeable as consumed and offered in conjunction with Our Software/SaaS.
Warranty Period - means the applicable warranty period for the Software or SaaS (as applicable) being 180 days from the start of the Initial License or SaaS provision, as the case may be, unless otherwise as set out in an applicable Statement of Work.
1 TERM AND STATEMENT OF WORK
1.1 This Agreement is for the Initial Term and will continue for consecutive Further Terms unless terminated in accordance with clause 7.
This Agreement is a framework agreement, the terms of which are to be incorporated into any number of Statements of Work and Annexes 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 framework agreement shall subsist for as long as at least one Statement of Work subsists.
1.1 Each Statement of Work, together with any Annexes 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.
1.2 For the supply of any further Software, SaaS 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.
1.3 If there is any conflict or inconsistency between any provision of these Terms and Conditions and any Statement of Work these Terms and Conditions shall prevail unless specifically stated in writing in a Statement of Work with reference to this clause.
1.4 Except as set out in this Agreement, all dates, timescales and Consulting Services are estimates only and this is a time and materials contract. Furthermore, the parties agree that failure to meet a specified date will not be treated as a breach of contract by Us due to the collaborative nature of the project.
1.5 Each Statement of Work will be effective on execution by authorised signatories from each party and the Effective Date shall be deemed to be the date on which You executed the Statement of Work.
2.1 In consideration of and conditional upon the payment of the Initial license Fee to Us, if applicable, and the continued payment of the Annual license Fee to Us (on the terms set out in the relevant Statement of Work), We grant the Licensee a non-exclusive, revocable, non-transferable license which shall commence on the date of installation of the Software or SaaS and shall continue for the license Term. The Software or SaaS may not be used unless the Annual license Fee is paid in full.
2.2 The license is granted to You, as identified by Your Companies House registration number, or other unique identifier, where applicable, and the license to use will transfer with You should Your ownership change, provided that the Company registration number does not change.
2.3 The Software or SaaS 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 license Fee and associated Annual license Fee.
2.4 The Licensee can Use the Software or SaaS to create and service unlimited databases (including any databases used exclusively for training, testing or disaster recovery). The license can be extended to service additional databases if You purchase additional license components from Us as agreed in a Statement of Work.
2.5 Unless explicitly stated otherwise in an applicable Statement of Work, the license covers the Use of the Software where the database(s) reside on a single SQL server instance only. Use of the Software or SaaS is limited to the processing of Your/ Licensee's own data. For the avoidance of any doubt, You are not permitted to provide services to third parties using the Services, Software or SaaS.
2.6 Unless explicitly stated otherwise in an applicable Statement of Work, 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 license (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 initial credentials. No right is given for the Licensee to Use the Software or SaaS commercially unless You have acknowledged acceptance. If the Software or SaaS 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.
2.7 You shall protect and keep confidential all passwords and credentials and shall be responsible for all use of the Software, Services or SaaS that occurs under your passwords and credentials whether or not such use was by You, on Your behalf or authorised by You.
2.8 We reserve the right to embed technology within the Software or SaaS to automatically time expire the Software or SaaS if the relevant License Fee is not paid by You. The Software or SaaS comprises of computer software application(s), which in turn may include a number of elements, (modules and users). This license 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 license upon payment of the invoice.
2.9 You acknowledge that the Third Party Software and Pie Cloud 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.
2.10 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 or SaaS, in whole or in part, or in any way expose the source code, instruction sequences, internal logic, protocols, or algorithms of the Software or SaaS. Where You are purchasing SaaS, You may access it only through published interfaces and APIs using authorised logins. Nothing in this clause shall prevent You from configuring interfaces and other elements in Software or SaaS which are intended to be configured by You.
2.11 You acknowledge that You have no right to have any access to the Software or SaaS 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 or SaaS which are intended to protect the facility and integrity of the Software or SaaS and You agree not to use any systems, processes or software in connection with the Software or SaaS which are intended to circumvent such protections. You have no right to perform penetration testing on any of Our systems of Software or SaaS without our prior written consent which will be subject to a specific penetration test access agreement.
2.12 You shall permit Us to have access upon reasonable written notice during the license Term to inspect during Business Hours the premises and the Customer System at or on which the Software or SaaS is being kept or used, and any records kept pursuant to the license, 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 or SaaS, 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 or SaaS.
2.13 We shall provide You with upgrades relating to the Software or SaaS for which you are validly licensed for 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 provide Technical Support in respect of the version of the Software or SaaS used by You from time to time in accordance with the terms set out of this Agreement.
2.14 Where Third Party Software is provided under this Agreement, We shall provide such software to You under the software license terms provided by the third party licensor of such software. You undertake to comply with the terms of any EULA in relation to the Third Party Software which we notify You of from time to time.
2.15 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 and the production of the Confirmation of Requirements (where applicable). If agreed between the parties in the Statement of Work.
2.16 We shall use reasonable endeavours in accordance with good industry practice to prevent the introduction of known computer viruses or other program code which is likely to damage the Software, SaaS 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.
2.17 We warrant that during the Warranty Period the Software or SaaS 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 term of the Agreement maintain all necessary licenses and consents, and comply with all applicable laws and regulations relating to the Software or SaaS. For the avoidance of doubt, We do not warrant that the operation of the Software or SaaS will be uninterrupted or error free.
2.18 If, within the relevant Warranty Period, You notify Us in writing of any defect or fault in the Software or SaaS 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 2.20, 2.21 or 2.22, We shall, at Our option, repair or replace the Software or SaaS (or any defective part thereof). Any replacement Software or SaaS will be of the same or equivalent functionality. Fixes to Software or SaaS will normally be provided within a new or later version. We shall not be required to fix any bug where that bug does not exist in a subsequent version of the Software which is made available to you under the same terms as the Software in question.
2.19 Software or SaaS 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 or SaaS and for ensuring that it fully meets Your business requirements. We are not a manufacturer of Customer System.
2.20 The warranty given under clause 2.18 does not cover, and We shall have no liability for, persistent or material defects or failures in the Software or SaaS caused by:
2.20.1 any fault in the Customer System that prevents the Software or SaaS working in or with the Customer System;
2.20.2 the Licensee’s failure to use the Software or SaaS in accordance with the Documentation or terms specified in the Statement of Work;
2.20.3 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 or SaaS;
2.20.4 third party software or hardware which is not provided or approved by Us;
2.20.5 any modification or alteration of or attachment to the Software or SaaS or removal of the same, other than those made by Us or on Our behalf; or
2.20.6 persistent refusal to allow Us access to the Software, SaaS or relevant data for the purpose of Technical Support.
2.21 In addition to the provisions of clause 2.20 We shall have no liability or responsibility for:
2.21.1 support of the Customer System, other software and/or hardware, accessories, attachments, machines, systems or devices which are not supplied by Us;
2.21.2 rectification of problems not directly associated with Software or SaaS.
2.22 The provision of the warranty in clause 2.18 is further dependent on You having a current and valid fully paid up license for the Software/SaaS or having paid all Fees up to date. The warranty does not cover minor errors that do not materially affect the functionality of the Software or SaaS. This warranty applies to standard (non-customised) Software/SaaS only and rectification of errors and corrections will only be made in relation to the standard version of the Software or SaaS.
2.23 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 clauses2.20, 2.21 or 2.22 above work
3 TECHNICAL SUPPORT
3.1 Technical Support shall start on the Effective Date and continue during the license Term, subject to the payment of the relevant fee.
3.2 Technical Support is available on Our online service 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);
3.3 If You use third party consultants not approved by Us to configure the Software/SaaS, We will have the right to charge You for Our Consulting Services to fix the configuration issues caused by those third parties and/or terminate Technical Support.
3.4 For customers with a Pie Cloud Support Plan, Technical Support will be delivered based on the level of Pie Cloud Support Plan purchased. We will provide support services and service levels as specified in the Pie Cloud Support Plan datasheet in effect at the start of the Effective Date. We reserve the rights to amend the Services specified within the Pie Cloud Support Plan, but any such changes would only come into effect at the beginning of each renewal. The Pie Cloud Support Plan options are available via your account manager.
3.5 For support not covered by a Pie Cloud Support Plan 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 when skeleton staff will be in operation) and up to three days per year which are dedicated to special staff training events and which shall be notified to You on reasonable notice;
3.6 For support not covered by a Pie Cloud Support Plan we will provide Technical Support to Permitted Users who have undertaken training. 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 Technical Support to ensure smooth communications.
3.7 Our obligation to provide the Technical Support shall not extend to:
3.7.1 rectification of lost or corrupted data arising by reason other than Our negligence;
3.7.2 any supported Software/SaaS which has been changed, altered, added to, modified or varied by anyone other than Us;
3.7.3 attendance to faults caused by Your failure to use the supported Software or SaaS in accordance with the requirements of the Documentation and/or documentation or manuals supplied with the supported Software/SaaS, or caused by operator error or omission;
3.7.4 attendance to faults attributable to faults in the Customer System or its use or interaction with other software with which the Software/SaaS is not compatible or its use or interaction with software or on equipment that We have not approved in writing.
• CONSULTING SERVICES
3.8 We will perform the Consulting Services specified in the applicable Statement of Work.
5 PAYROLL SERVICES
3.9 Where We provide Payroll Services to You, we will use reasonable endeavours to comply with the relevant service levels set out in the Statement of Work. These service levels are subject to change from time to time without notice to You.
3.10 Where We provide Payroll Services to You then if an employee alleges, or is held to have any rights or claims against Us pursuant to the Transfer Regulations, including in particular that their employment has, should or should have transferred to Us, whether or not they are an employee of You (a “Transferring Employee”), You shall be liable for and shall indemnify Us and hold Us harmless from and against the following, below. This indemnity also covers any such allegation, finding or claim made on behalf of a Transferring Employee by any representative:
3.10.1 all pay, salary, bonuses, commissions, benefits, holiday pay, employment benefit costs, contractual payments due (whether expressed or implied) statutory and/or contractual redundancy payments, protective awards, settlements, liability for wrongful and/or unfair dismissal and/or liability for discrimination awards claimed from and/or incurred by Us including all legal and professional fees incurred as a result of the claim or action. The sums referred to in this sub-paragraph shall include any and all Losses relating directly or indirectly to the terms and conditions of employment, pensions and/or life assurance arrangements, health, welfare or any other matters concerning the Transferring Employee or any other claims which the Transferring Employee may have against You or any third party in respect of any period before the transfer of the employment of the Transferring Employee to Us; and
3.10.2 all claims or liabilities arising out of any breach by You, Us or any third party of the Transfer Regulations in respect of any Transferring Employee.
• SAAS AND HOSTING INFRASTRUCTURE SERVICES
3.11 We shall provide such SaaS and Hosting Infrastructure Services requested by You which are agreed in a Statement of Work. If Your SaaS usage exceeds the number of Permitted Users, we will invoice You for the excess usage from the time the excess usage commenced in accordance with Our then current price book .If Your Hosting Infrastructure Services usage exceeds the number of Permitted Users, CPUs, storage or RAM (each as set out in the relevant Statement of Work), we will invoice You for the excess usage from the time the excess usage commenced in accordance with Our then current price book.
3.12 We shall ensure that Our provision of the SaaS and Our Hosting Infrastructure Services and You shall ensure that Your use of the SaaS or Software Hosting Infrastructure Services complies in all respects with all applicable laws.
3.13 Our SaaS or Hosting Infrastructure Services (as applicable) include:
3.13.1 dedicated, high availability firewalls to protect the private cloud;
3.13.2 Managed backups within a multi-tenancy data vault with secure encrypted retention, disaster recovery is available ;
3.13.3 24/7/365 automated monitoring, reporting and alerting; and
3.13.4 24/7/365 engineer availability.
3.14 All servers used to provide the SaaS or Software Hosting Infrastructure Services are supplied by third party hosting providers, however are subject to Our current back-up and recovery procedures. Sufficient resource is available to ensure continuity of service in event of total server failure with a target recovery time of 24 hours for any given server.
3.15 Service Level Provisions
3.15.1 Service Level Targets: We will use all reasonable efforts to ensure that the SaaS and Hosting Infrastructure Services are available for 95% of each calendar month. The Service will be deemed unavailable if it cannot be reached from a functioning Internet Connection. Any instances of unavailability shall have to be ratified by Our monitoring system.
3.15.2 The SaaS or Hosting Infrastructure Services shall not be deemed unavailable (without limitation) in the event of any of the following:
184.108.40.206 Periods of scheduled maintenance;
220.127.116.11 Failure by You or End User connection to the Network (e.g. via the public internet or your own network, or any 3rd party telecommunications tail circuits);
18.104.22.168 Malfunction of yours or End User’s own computing systems;
22.214.171.124 Initial setup period, that is from date of signing this Agreement until commencement of Hosting Infrastructure Services or installation of the SaaS;
126.96.36.199 Any period of service suspension caused by Your failure to comply with provisions of this Agreement.
3.16 After termination of this Agreement or an applicable Statement of Work We will:
3.16.1 maintain Your historic data for a mutually agreed time;
3.16.2 assist and cooperate with You in a timely fashion to provide a data export in an acceptable format, however a reasonable charge may be applicable (as agreed in advance with You) if the data format is non-standard or time consuming; and
3.16.3 assist You and/or Your nominated alternative provider in migrating the Customer Data at the relevant time in the format and on the media reasonably specified, however a reasonable charge may be applicable (as agreed in advance with You) if the data format is non-standard or time consuming.
• HOSTING INFRASTRUCTURE SERVICES ONLY
3.17 If You have requested Hosting Infrastructure Services in a Statement of Work, the Service Level Provisions in 3.15 apply in addition to the following additional service level provisions:
3.17.1 Recovery Point Objective RPO is the maximum time period in which data might be lost, for SQL Server this is 24 hours, for a Single Virtual Machine this is 24 hours, for a Complete Primary Data centre Outage this is also 24 hours.
3.17.2 Recovery Time Objective RTO is the duration of working time within which Service should be restored after a disaster. This time starts from when a support call is logged with Us, for SQL Server this is 12 hours, for a Single Virtual Machine is 12 hours, for a Complete Data centre Outage it is 24 hours.
SERVICE LEVEL CREDITS FOR HOSTING INFRASTRUCTURE SERVICES
3.18 If We fail to achieve the Service Level Target for Hosting Infrastructure Services only, and if You request We do so within twenty (20) Business Days after the target is not met, We will issue You service credits against future periods of service as detailed in the adjacent table.
3.19 The MRC* (monthly recurring charges) used to calculate the Service credits will be the total monthly recurring charges relating to the affected Service.
3.20 Service credits issued shall not survive termination of the relevant Statement of Work and are not applicable against other Fees.
3.21 Performance against Service Level Targets will be reviewed and agreed on a quarterly basis by Our account management.
|Service||Service Level Target for Hosting Infrastructure Services||Incident||Service Credit|
|Managed Server||12 Hour Hardware Replacement **||Hardware not replaced within 12 hours **||1 day subscription per hour of downtime (after 12 hours)*|
|Cloud Hosting||95% Uptime||Cloud Instance ‘unavailable’ during calendar month||1 hour subscription per hour of downtime*|
|Co-location||95% Uptime||Service ‘unavailable’ during calendar month||1 hour subscription per hour of downtime*|
|We Network||95% Uptime||The Network ‘unavailable’ during calendar month||1 hour subscription per hour of downtime*|
|Telephone Support Response||Engineer working on the problem||Within 12 hours of notification of logging a critical issue.||1 hour subscription per hour of delay*|
3.22 We will perform all Services in accordance with good industry practices and will use appropriately skilled and qualified personnel.
3.23 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.
3.24 You shall:
3.24.1 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 Our staff and associates to perform the Services and so that We can ensure that You are complying with the terms of this Agreement;
3.24.2 provide, free of charge, appropriately qualified and experienced personnel familiar with the Customer Systems, equipment, programs 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;
3.24.3 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;
3.24.4 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;
3.24.5 ensure that the Customer Systems comply with the agreed specification as set out in the relevant Statement of Work;
3.24.6 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;
3.25 Our ability to deliver the Services depends totally on Your full and timely cooperation, as well as the accuracy and completeness of any information that You provide. If You fail to do this You may be in material breach of this Agreement. You accept that the very nature of the project may necessitate disruption to Your staff and business processes in order to accommodate the implementation.
4 FEES AND PAYMENT
4.1 You agree to pay the Fees, as applicable, for the Software, SaaS and Services without deduction or set off and in accordance with the terms specified in each Statement of Work. All Fees and other charges are exclusive of VAT which will be added at the appropriate rate.
4.2 The Fees are non-refundable.
4.3 We have the right to increase all Fees annually. For the avoidance of doubt, the Annual license Fee will not be reduced for the license Term.
4.4 We reserve the right to suspend the supply and/or access to the Software, SaaS 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 amounts at a rate of 5% per annum above the base rate of Bank Of Ireland 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.
4.5 In the event that You cancel or postpone the provision of 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, You shall reimburse us in full for all costs and expenses that We suffer or incur if You cancel or postpone any Services prior to the agreed start date.
4.6 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, at our then current standard rates, 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.
4.7 Unless expressly stated to the contrary all Consulting Services detailed in a Statement of Work are estimates only and exclude actual travel and accommodation expenses which will be charged as incurred in line with our standard terms which are available on our website (these terms may be updated from time to time).
4.8 You are required to make payment via the relevant jurisdiction’s 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.
5 DATA PROTECTION
The parties agree to comply with the GDPR Processor Clauses in Schedule 1.
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, SaaS, 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, SaaS, 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, SaaS, 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 reasonably 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, SaaS, 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 EU registered patent (effective at the date of this Agreement) (“Infringement Claim”).
6.5 We warrant that We are not aware that the Software, SaaS 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, SaaS, Services or the Documentation or any part thereof may infringe any third party’s copyright or the relevant jurisdiction registered patent (effective at the date of this Agreement), We may, at Our sole option, (i) procure such license, authorisation or consent as is necessary to enable Your continued use of the Software, SaaS 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 unused portion of any Annual license Fees pre-paid in respect of such Software (as the case may be) 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 agree 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, SaaS 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/SaaS at Your request.
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.
7 TERMINATION AND SUSPENSION
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 any affected element of the Software, SaaS or Services provided under it by immediate written notice to the other party.
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, SaaS or Services provided under it by immediate written notice to the other party.
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 We may suspend and/or terminate the Technical Support immediately if You do not pay the Support Fees by the due dates. Suspension does not relieve you of any liability to pay the Support Fees.
7.5 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.
7.6 Upon termination of this Agreement or any Statement of Work in whole or in part for any reason:
7.6.1 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
7.6.2 You shall cease all access and use of the Software/SaaS and shall, at Our request, return or destroy as soon as reasonably practicable any copies of the Software/SaaS subject to such termination; and
7.6.3 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 whether express or 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 or payable to Us in the preceding 12 month period pursuant to the relevant Statement of Work.
8.3 Subject to clause 8.4, neither party shall be liable for any misrepresentation (other than fraudulent misrepresentation), 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 (in each case whether direct or indirect) nor for any special, indirect or consequential loss or damage suffered by the other in connection with this Agreement.
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 nor Your obligation or liability to pay all and any of the Fees under this Agreement.
9.1 This clause shall not apply to any unpaid Fees which, for the avoidance of any doubt, shall deemed to be a material breach and shall be dealt with under clause 7.1 or 7.2 as applicable. If a dispute arises between You and Us in relation to any other matter the representatives for each of us in relation to the applicable Statement of Work shall, in the first instance attempt to agree a resolution for such dispute. If after 30 days (or such other time as the parties may agree in writing) such representatives, each acting reasonably, are unable to resolve the dispute each of You and We shall arrange for a senior representative to attend one or more meeting 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.
9.2 If the senior representatives are unable to resolve the matter in question within 30 days (or such other time as the parties may agree in writing) then we will attempt to settle it by mediation in accordance with an agreed ADR body or any other model mediation procedure as agreed between us, available in the relevant jurisdiction. 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 the ADR body 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 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.
10.1 No variation of these Terms and Conditions shall be effective unless it is in writing and signed by the parties (or their authorised representatives) PROVIDED THAT We may, acting reasonably, unilaterally amend these Terms and Conditions immediately on notice to You in order to comply with any applicable law.
10.2 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.
10.3 The construction, validity, and performance of this Agreement shall be governed by the laws of Ireland in Ireland, and by the law of the trading jurisdiction, and the parties submit to the exclusive jurisdiction of the Irish courts.
10.4 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 contractual statement.
10.5 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, SaaS, 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.
10.6 You agree that We may refer to You as a client and as a user of Software/SaaS as applicable in Our marketing and public relations materials.
10.7 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.
10.8 Neither Party 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 provided that We may transfer or assign this Agreement to any successor in interest in the event of a sale or merger, such transfer or assignment to be effective upon written notice to You.
10.9 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.
10.10 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.
10.11 Both parties shall comply with all applicable laws, statutes, regulations and codes relating to anti-bribery and anti-corruption including but not limited to the The criminal Justice Act 2018 (Relevant Requirements) including but not limited to:
10.11.1 Not engaging in any activity, practice or conduct which would constitute an offence under The criminal Justice Act 2018; and
10.11.2 Having and maintaining throughout the term of the Agreement its own policies and procedures, including but not limited to adequate procedures under the The criminal Justice Act 2018, to ensure compliance with the Relevant Requirements and enforce them where appropriate.
11.1 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.
GDPR PROCESSOR CLAUSES
1 AGREED TERMS
1.1 In this Schedule the following words shall have the following meanings:
1.2 “Personal Data Breach” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised. disclosure of, or access to, personal data transmitted, stored or otherwise processed.
1.3 “Data Protection Legislation” the General Data Protection Regulation (Regulation (EU) 2016/679), Data Protection Act 2018 , the Regulation of Investigatory Powers Act 2000, the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 (SI 2000/2699), the Electronic Communications Data Protection Directive (2002/58/EC), the ePrivacy Regulation repealing Directive 2002/58/EC and subordingate national legislation (once applicable), the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2426/2003) and all laws and regulations applicable to the relevant party relating to the processing of personal data under or in relation to the Agreement including, where applicable, the guidance and codes of practice issued by the Information Commissioner or any other applicable supervisory authority, and the equivalent of any of the foregoing in any relevant jurisdiction.
1.4 “personal data”, “data subject”, “controller”, “processor” and “process” shall be interpreted in accordance with applicable Data Protection Legislation.
1.5 ‘Your personal data’ means any personal data for which You are the data controller and We are the data processor pursuant to this Agreement.
2 PROCESSOR CLAUSES
2.1 In the event that We process Your personal data under the Agreement, the parties record their intention that We are the processor and You are the controller of such personal data. Annex 1 to this Addendum 1 sets out the subject-matter and duration of the processing of Your personal data, the nature and purpose of the processing, the type of personal data and the categories of data subjects. The parties may amend Annex 1 from time to time by written agreement. You warrant and undertake that You have reviewed Annex 1 and that it contains full and accurate details of “type of personal data” and “categories of data subject” to which the Agreement relates. In the event of any change during the term of the Agreement You shall inform Us and You and We shall work together to correct Annex 1.
2.2 Each party shall comply with its obligations under applicable Data Protection Legislation and You warrant and undertake that You shall not instruct Us to process Your personal data where such processing would be unlawful.
2.3 Subject to paragraph 2.4 below, We shall process Your personal data only in accordance with Your documented instructions and shall not transfer Your Personal Data outside of the European Economic Area without Your consent. For the avoidance of any doubt, any configuration of the service by You shall constitute ‘written instructions’ for the purposes of this Addendum 1.
2.4 We may process Your personal data other than in accordance with Your documented instructions where required to do so by applicable law provided that (unless prohibited by applicable law on important grounds of public interest) We shall notify You of such legal requirement before such processing.
2.5 We shall ensure that individuals engaged in the processing of Your personal data under the Agreement are subject to obligations of confidentiality in respect of such personal data.
2.6 We shall implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk involved in processing Your personal data pursuant to the Agreement.
2.7 We may engage such other processors (“Sub Processors”) as We consider reasonably appropriate for the processing of Your personal data in accordance with the terms of the Agreement (including in connection with support, maintenance and development, staff augmentation and the use of third party data centres) provided that We shall notify You of the addition or replacement of such Sub Processors and You may, on reasonable grounds, object to a Sub Processor by notifying Us in writing within 5 days of receipt of Our notification, giving reasons for Your objection. The parties shall work together to reach agreement on the engagement of Sub Processors. We shall require all Sub Processors to enter into an agreement equivalent effect to the terms contained in paragraphs 2.3 to 2.6 inclusive and We shall remain responsible and liable for Sub Processors’ acts and omissions.
2.8 In the event that any data subject exercises its rights under applicable Data Protection Legislation against You, We shall respond without undue delay and shall use reasonable commercial efforts, to assist You in fulfilling Your obligations as controller within 5 days following written request from You provided that We may (a) extend such time period and/or (b) charge You on a time and materials basis in the event that we consider, in our reasonable discretion, that such assistance is onerous, complex, frequent or time consuming.
2.9 Upon discovering a Personal Data Breach, We shall notify You within 72 hours and without undue delay and shall assist You to the extent reasonably necessary in connection with notification to the applicable Supervisory Authority and data subjects, taking into account the nature of processing and the information available to Us.
2.10 In the event that You consider that the processing of personal data performed pursuant to the Agreement requires a privacy impact assessment to be undertaken, following written request from You, We shall use reasonable commercial endeavours to provide relevant information and assistance to You to facilitate such privacy impact assessment. We may charge You for such assistance on a time and materials basis.
2.11 Unless otherwise required by applicable law, following termination or expiry of the Agreement We shall, at Your option, delete or return all Your personal data and all copies thereof to You.
2.12 Where requested by You, We shall make available all information necessary to demonstrate Our compliance with the foregoing paragraphs 2.3 to 2.11 inclusive and shall contribute to audits conducted by You or another auditor mandated by You with reasonable prior written notice. Your personal data until You notify Us that Your instructions are non-infringing or amend Your instructions to make them non-infringing and notify Us accordingly.
ANNEX 1 – DETAILS OF PROCESSING
For details of how personal data is processed under this Agreement, please see our GDPR Documentation on our website.