1.1 The definitions and rules of interpretation in this clause apply in this agreement.
“Additional Services” means any additional services outside the scope of the Services which the Customer may request the Supplier to provide to it from time to time, further details of which are set out in the Commercial Terms;
“Additional Service Fee” means the additional service fee payable in respect of the Additional Services, further details of which are set out in the Commercial Terms;
“Authorised Users” means those named employees and independent contractors of the Customer or its Entities who are entitled to use the Software through the Hosting Services under this agreement, as further described in clause 4.2;
“Business Day” means any day which is not a Saturday, Sunday or a public holiday on which banks are open for business;
“Company Databases or Customer Databases” means the individual SQL Server databases created by the Customer in which the Customer Data is stored for each Entity for whom the Customer uses the Software to maintain accounts;
“Confidential Information” means information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 10.5;
“Customer Data” means the data relating to each Entity input into the information fields of the Software by the Customer and its Authorised Users, or by the Supplier on the Customer’s behalf;
“Customer’s Project Manager” means the person appointed by the Customer in accordance with clause 6(c), who at the Effective Date is named in the Commercial Terms;
“Data Protection Law” means the Data Protection Act 1998 to 2018 and the GDPR and any other legislation in force from time to time which implements the GDPR and all applicable law relating to the processing or protection and privacy of personal data, including where applicable the guidance and codes of practice issued by the Information Commissioner or relevant supervisory authority from time to time.
“Data Controller” and “Data Processor” shall have the meanings as set out in Article 4(7) and (8) respectively of the GDPR;
“Effective date” means the date set out in the Commercial Terms;
“Entities” means the companies, subsidiaries, clients or franchisees of the Customer for whom the Customer shall create Company Databases;
“Fees” means the fees payable to the Supplier, as set out in the Commercial Terms;
“GDPR” means the General Data Protection Regulations 2016 (Regulation (EU) 2016/679);
“Hosting Services” means the services provided by the Supplier to allow Authorised Users access and use the Software, as described in Schedule 1;
“Implementation Services” means the training, configuration and related work referred to in clause 2 to be performed by the Supplier to setup the Software for use by the Customer;
“Maintenance and Support” means any error corrections, updates and upgrades that the Supplier may provide with respect to the Software, as well as any other support services provided to the Customer under this agreement, as described in Schedule 1;
“Personal Data” shall have the meaning set out in Article 4(1) of the GDPR;
“Service Level Arrangements” means the service level arrangements set out in Schedule 2;
“Services” means the Implementation Services, Hosting Services and/or Maintenance and Support as applicable;
“Software” means the Supplier’s proprietary software in machine-readable object code form used to deliver the Services, including any error corrections, updates, upgrades, modifications and enhancements provided to the Customer under this agreement;
“Software Features” means the functionality of the Software, as set out in the features at a glance list.
“Supplier’s Project Manager” means the person appointed by the Supplier in accordance with clause 2.1, who at the Effective Date is named in the Commercial Terms; and
“Supplier’s Hosted Platform” means the computer servers and infrastructure in the purpose built hosting facility from which access to the Software is delivered.
“Usage Fees” means the Monthly Usage Fees for entities and users set out in the Commercial Terms.
1.2 Clause, schedule and paragraph headings shall not affect the interpretation of this agreement.
1.3 A person includes a corporate or unincorporated body (whether or not having separate legal personality).
1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.5 Words in the singular shall include the plural and vice versa.
1.6 A reference to one gender shall include a reference to the other genders.
1.7 A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.8 References to clauses and schedules are to the clauses and schedules of this agreement; references to paragraphs are to paragraphs of the relevant schedule.
2. Implementation Services
2.1 The Supplier shall appoint the Supplier’s Project Manager as the main liaison for the Customer and shall use reasonable endeavours to ensure continuity, but shall have the right to replace him from time to time where reasonably necessary. At the Customer’s reasonable request, the Supplier may agree to replace the Supplier’s Project Manager. There will be no additional charge to the Customer for familiarizing the new Project Manager with Customer’s business.
2.2 The Supplier shall perform the Implementation Services at the fee outlined in the Commercial Terms to setup the Customer on the Supplier’s hosted platform in order to allow the Customer to access and maintain its Company Databases. Training will be provided to a maximum of 5 people at a time. Where appropriate this training can be provided via the Internet.
2.3 On completion of the Implementation Services, the Customer shall be able to access its Company Databases and create new Company Databases as required. The Effective Date for this agreement will be as per the Commercial Terms or the date on which the first of the Company Databases becomes available and accessible to the Customer and/or its Authorised Users, if later.
2.4 As part of the Implementation Services, the Supplier may offer to help convert data from the Customer’s existing accounting system. This will become the opening and historic Customer Data on the Company Databases of the Customer (the “Converted Data”). The Supplier may also offer to build integrations between the Software and third party software that the Customer uses. Delivery of such integrations will depend on the provider of that third party software and a detailed specification being agreed.
2.5 Data conversion, integration with third party systems and design and development of special reports or dashboards may also have been estimated in the Commercial Terms based on the information supplied by the Customer. The work required for these aspects may be re-estimated once more detailed specification of the requirements has been produced. Any resulting change in the estimates or any Additional Services required will be agreed with the Customer in advance and will be charged on the basis of the number of days required by the Additional Service Fee set out in the Commercial Terms.
2.6 The Customer shall be entirely responsible for verifying the accuracy, veracity and correctness of any Converted Data. The Supplier expressly excludes any liability whatsoever (to the maximum extent allowable under applicable law) for any errors, omissions or inaccuracies in such Converted Data.
3. Software, Hosting Services, Maintenance and Support
3.1 The Supplier shall perform the Hosting Services and the Maintenance and Support services as set out in Schedule 1 to ensure it can deliver the Services in accordance with the Service Level Agreement set out in Schedule 2. The Supplier shall engage its service provider to perform the Hosting Services on its behalf in accordance with international best practice. The hosting service provider will be bound by a service level agreement to deliver the service to strict performance tolerances.
3.2 In relation to Software:
(a) the Supplier hereby grants to the Customer, subject to the terms and conditions of this agreement, a non-exclusive, non-transferable licence to allow Authorised Users to access the Software through the Hosting Services and to use the Software solely for the Customer’s business purposes and that of its Entities;
(b) the Customer shall not store, distribute or transmit any material through the Hosting Services that is unlawful, harmful, threatening, defamatory, obscene, harassing or racially or ethnically offensive; facilitates illegal activity; depicts sexually explicit images; or promotes unlawful violence, discrimination based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activities;
(c) the rights provided under this clause 3 are granted to the Customer and the Entities for whom the Customer have established a Company Database only, and shall not be considered granted to any agent, affiliate, subsidiary or holding company of the Customer or its Entities; and
the Customer shall not:
(d) attempt to duplicate, modify or distribute any portion of the Software;
(e) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form any of the Software, except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties;
(f) transfer, temporarily or permanently, any of its rights under this agreement, or
(g) attempt to obtain, or assist others in obtaining, access to the Software, other than as provided under this agreement.
4. Customer Data
4.1 The Customer can create new Company Databases by using the setup functions in the Software on the basis of either the template Company Databases provided in the Software or by using its existing Company Databases as the basis for each new Company Database. Each Company Database will be stored in a separate SQL Server database file and will have a unique company ID and its own unique Authorised Users.
4.2 The Customer can create Authorised Users for each of the Company Databases. These can be employees or independent contractors of either the Customer or its Entities. In relation to these Authorised Users:
(a) each Authorised User will have a unique username and password which will give them access to the relevant Company Database. Employees or contractors of the Customer can be given access to multiple Entities via one username and password. Three level authentication will apply requiring an Authorised Users to enter valid company ID, username and password to get into the Software;
(b) the number of Authorised Users entitled to access the Company Databases is set out in the Commercial Terms;
(c) the Customer may add new Authorised Users and the Usage Fees will be increased to reflect the number of active Authorised Users across all the Customer’s Company Databases based on the Usage Fee per Full Users or Lite Users in the Commercial Terms;
(d) the Customer shall ensure that its Authorised Users keep a secure password for use of the Software. If Authorised User details become known to a third party, the Customer must inform the Supplier so that those Authorised Users can be disabled;
(e) only one employee or independent contractor of the Customer or Entity can be assigned to each Authorised User; and
4.3 The Supplier and its hosting service provider shall not be allowed to access Customer Databases except as provided in this agreement or for purpose of providing the Services, determining the cause of Software problems and/or correcting Customer Data. The Customer may control access by the Supplier to Customer Databases through the Software by creating special Authorised Users which they can enable or disable to allow the Supplier access the Customer Data in order to provide the Services.
4.4 For billing purposes, the Supplier may audit the number and size of Company Databases and the number, name and level of usage for each Authorised User. Such audit will not interfere with the Customer’s normal conduct of business.
4.5 In the event of any loss or damage to Customer Data caused by the Supplier, the Customer’s sole and exclusive remedy shall be for the Supplier to use all reasonable commercial efforts to restore the lost or damaged Customer Data from the latest back-up of Customer Data in accordance with its archiving procedure and to assist with the re-posting of any transactions which could not be recovered. In this event, additional time required to recreate Customer Data lost or damaged by the Supplier, which the Supplier has been unable to recover from back-ups will be considered downtime in calculating Service Credits as defined in Schedule 2. In respect of this clause, timing shall be of the essence and the Supplier undertakes to use its reasonable commercial endeavours to work and co-operate with the Customer in respect of any remedial action arising from such loss or damage to Customer Data.
4.6 The Supplier shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any Authorised Users or any third party given access by the Customer or accessing the data using an account setup by the Customer.
4.7 The legitimacy, completeness and correctness of the Customer Data stored is the sole responsibility of the Customer.
5. Supplier’s Obligations
5.1 The Supplier undertakes that the Services will be performed with all reasonable skill and care.
5.2 The Supplier does not warrant that the Customer’s use of the Software and the Services will be uninterrupted or error-free.
5.3 The Supplier will take all reasonable measures to prevent unauthorised access to the Customer Data.
5.4 This agreement shall not prevent the Supplier from entering into similar agreements with third parties, or from independently developing, using, selling or licensing materials, products or services which are similar to those provided under this agreement.
6. Customer’s Obligations
The Customer shall:
(a) provide the Supplier with all necessary co-operation in relation to this agreement and all necessary access to such information as may be required by the Supplier in order to render the Services, including but not limited to Customer Data, security access information and software interfaces to the Customer’s other systems, to which the Supplier has agreed to build an interface;
(b) provide such personnel assistance, as may be reasonably requested by the Supplier from time to time. The Supplier shall use reasonable endeavours to ensure continuity of its personnel assigned to deal with the Customer under this agreement;
(c) appoint the Customer’s Project Manager as the main liaison with the Supplier in relation to this Agreement, who shall have the authority to contractually bind the Customer on all matters relating to this agreement. The Customer shall use reasonable endeavours to ensure continuity of the Customer’s Project Manager;
(d) will not approach or offer employment to any of the Supplier’s employees or contractors;
(e) allow the Supplier to use their name as a customer of the Supplier in its marketing material, when approval has been sought, such approval not to be unreasonably withheld;
(f) comply with all applicable laws and regulations with respect to its activities under this agreement; and
(g) carry out all other Customer responsibilities set out in this agreement and its schedules in in a timely and efficient manner.
7. Charges and Payment
7.1 The Usage Fees at the outset are detailed in the Commercial Terms but will be re-calculated each month based on the number of Company Databases under each version, the number of Authorised Users, the size of the Company Databases in use and the Add-on Features being used by the Customer at that date.
7.2 The Supplier shall invoice and the Customer shall pay the Fees set out in the Commercial Terms as follows:
(a) The Usage Fees, or the Minimum Fee, whichever is greater, will be invoiced in advance on a monthly, quarterly or annual basis as set out in the Commercial Terms. The payment will be processed by Direct Debit within 5 working days of the invoice. For payment not being made by Direct Debit, an electronic transfer must be received within 10 working days of being invoiced.
(b) Implementation Services Fees will be invoiced in installments as per the Commercial Terms starting from the Effective Date and will be collected by Direct Debit within 5 working days of each invoice date, unless agreed otherwise in the Commercial Terms.
7.3 An adjustment to the Usage Fees shall be included in respect of the previous month usage for any new Company Databases or Additional Authorised Users added during the previous month.
7.4 A fair usage policy applies whereby the Supplier reserves the right to review with the Customer where excessive transaction volumes are being posted to the system and if necessary increase the Usage Fee to reflect the large volumes involved.
7.5 If the Supplier has not received payment within thirty days of the due date, and without prejudice to any other rights of the Supplier, interest shall accrue at the Supplier’s discretion at the rate of 5% per annum, commencing on the due date and continuing until fully paid.
7.6 The Supplier may at its discretion block Authorised Users from accessing and using the Software if payment is not being made by the Customer on the terms set out in this agreement or if the Customer cancels their Direct Debit mandate without prior notice. The Supplier will notify the Customer in advance of its intention to block Authorised Users.
7.7 The Customer shall reimburse the Supplier for all reasonable travel expenses including, but not limited to, airfare, hotel and meals incurred by the Supplier in performance of the Services . The requirement to incur such expenses will be agreed in advance.
7.8 All amounts and fees stated or referred to in this agreement are exclusive of value added tax, which shall be added to the Supplier’s invoice(s) at the appropriate rate applicable.
7.9 The Supplier may increase the Usage Fees but not before the anniversary of the Effective Date, and will provide 30 days’ notice of any increases. Increases will be in line with a suitable official price index that applies to the provision of computer services.
8. Change Control
8.1 The Customer’s Project Manager and the Supplier’s Project Manager shall meet to the extent reasonably required to discuss matters relating to this agreement. If either party wishes to change the scope of the Services (“Change Request”), it shall submit details of the requested change to the other in writing. Consent to Change Request will not be unreasonably withheld.
8.2 For any Change Request the Supplier shall, within a reasonable time, provide a written estimate to the Customer of:
(a) the likely time required to implement the change;
(b) any variations to the Fees arising from the change; and
(c) any other impact of the change on the terms of this agreement.
8.3 If the Customer wishes to proceed with a Change Request, the Supplier has no obligation to do so unless and until the parties have agreed in writing the necessary variations to its Fees and any other relevant terms of this agreement to take account of the change.
9. Proprietary Rights
9.1 The Supplier confirms that it has all the rights in relation to the Software that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this agreement.
9.2 The Customer acknowledges and agrees that the Supplier and/or its licensors own all intellectual property rights in the Software and Services. Except as expressly stated herein, this agreement does not grant the Customer any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Software, Services or any related documentation.
10. Confidentiality and Data Protection
10.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this agreement. A party’s Confidential Information shall not be deemed to include information that:
(a) is or becomes publicly known other than through any act or omission of the receiving party;
(b) was in the other party’s lawful possession before the disclosure;
(c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
(d) is independently developed by the receiving party, which independent development can be shown by written evidence; or
(e) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
10.2 Each party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party or use the other’s Confidential Information for any purpose other than the implementation of this agreement.
10.3 Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this agreement. Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
10.4 For the avoidance of doubt the Customer acknowledges that the Software, the results of any performance tests of the Software and the Services constitute the Supplier’s Confidential Information. The Supplier acknowledges that the Customer Data is the Confidential Information of the Customer (and/or its Entities) which shall be stored in a safe and secure manner by the Supplier. Access to such Customer Data shall not be granted by the Supplier to any third parties without the consent of the Customer.
10.5 In relation to the GDPR, the Customer is the Data Controller and is solely responsible for any Personal Data contained in Customer Data. The Customer acknowledges that the Services provided by the Supplier as Data Processor do not extend to processing and storing of Personal Data, except to the extent that they are reflected in the Customer’s accounting records and transactions. The Supplier only processes name and email addresses in relation to the Customer’s Authorised Users. In addition, the Customer may create accounts for processing its employees’ expenses and for its customers and suppliers that are natural persons (“Data Subjects”), which may include details of their physical address, contact details, bank details and accounting transactions that the Customer has recorded in relation to those Data Subjects contained in the Customer Data.
10.6 The Customer will comply with Data Protection Law and has obtained all necessary consents from all Data Subjects in relation to their personal data stored in their Customer Data. The Supplier will not process personal data contained in the Customer Data other than to provide the Service, as instructed by the Customer or as necessary to comply with law.
10.7 To the extent that the Supplier can access this personal data, it shall ensure that it shall at all times comply with the provisions and obligations imposed on it by the Data Protection law relevant to the Customer’s jurisdiction. In particular, the Supplier shall, in relation to any personal data contained in the Customer Data:
(a) not process (including obtain, retain, disclose or transfer) any such data, other than in accordance with the Services;
(b) apply appropriate technical and security measures to protect any such data against unauthorised or unlawful processing (including obtaining, retaining, disclosing or transferring) and against accidental loss, destruction or damage;
(c) not transfer Customer Data outside the European Union without the prior written consent of the Customer;
(d) Permit the Customer to undertake an audit of Customer Data to confirm compliance with Data Protection Law provided that the Supplier is given at least 60 days’ prior notice and provided further that such audits shall not be performed more than once in any 12 month period (unless otherwise required by a supervisory authority);
(e) notify the Customer of a Personal Data breach without undue delay after becoming aware of such a breach;
(f) Cooperate with the Data Protection Commissioner and make any personal data records available for auditing purposes, where legally required to do so;
(g) provide all information reasonably requested by the Customer to assist the Customer:
(i) to meet the its obligations to advise data subjects and supervisory authorities of Personal Data breaches;
(ii) to comply with Data Subject access requests; and
(iii) to carry out data protection impact assessments (DPIA).
10.8 This clause 10 shall survive termination of this agreement, however arising.
11.1 The Supplier shall defend, indemnify and hold harmless the Customer, it’s officers, directors and employees against any claim that the Software infringes any patent effective as of the Effective Date, copyright, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:
(a) the Supplier is given prompt notice of any such claim;
(b) the Customer provides reasonable co-operation to the Supplier in the defence and settlement of such claim, at the Supplier’s expense; and
(c) the Supplier is given sole authority to defend or settle the claim.
11.2 The Supplier may replace or modify the Software so that it becomes non-infringing or obtain for the Customer the right to continue using the Software, or if none of these is possible to remove the infringing function.
11.3 The Supplier shall have no liability or obligation under 11.1 if the alleged infringement is based on:
(a) a modification of the Software by anyone other than the Supplier;
(b) the Customer’s use of the Software in a manner contrary to the instructions given to the Customer by the Supplier; or
(c) the Customer’s use of the Software after notice of the alleged or actual infringement
11.4 The foregoing states the Customer’s sole and exclusive rights and remedies, and the Supplier’s entire obligations and liability for patent, copyright, database or right of confidentiality infringement.
11.5 The Customer shall defend, indemnify and hold harmless the Supplier against claims, actions, proceedings, losses, damages, expenses and costs (including legal fees) arising out of or in connection with the Customer Data or the information obtained from the Customer Data via the Software or Services, provided that:
(a) the Customer is given prompt notice of any such claim;
(b) the Supplier provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer’s expense; and
(c) the Customer is given sole authority to defend or settle the claim.
12. Limitation of Liability
12.1 This clause 12 sets out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of:
(a) any breach of this agreement;
(b) any use made by the Customer of the Services, the Software or any part of them; and
(c) any representation, statement or tortious act or omission (including negligence) arising in connection with this agreement.
12.2 Except as expressly and specifically provided in this agreement:
(a) the Customer assumes sole responsibility for results obtained from the use of the Software and Services and for conclusions drawn from such use. The Supplier shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Supplier by the Customer in connection with the Services (including for the avoidance of doubt with respect to Converted Data), or any actions taken by the Supplier at the Customer’s direction; and
(b) all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this agreement.
12.3 Nothing in this agreement excludes the liability of the Supplier for death or personal injury caused by the Supplier’s negligence or for fraud or fraudulent misrepresentation.
12.4 The Service Level Arrangement in Schedule 2 states the Customer’s full and exclusive right and remedy, and the Supplier’s only obligation and liability in respect of the performance and/or availability of the Service, or its non-performance and non-availability.
12.5 The Supplier shall not be liable for any loss of profits, loss of business, depletion of goodwill and/or similar losses or pure economic loss, or for any special, indirect or consequential loss costs, damages, charges or expenses however arising
12.6 the Supplier’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement shall be limited to the price paid for the Services during the 12 months preceding the date on which the claim arose.
12.7 This Limitation of Liability does not apply to the Indemnity set out in 11 above.
13. Term and Termination
13.1 This agreement shall commence on the Effective Date and shall continue for the Term defined in the Commercial Terms, unless otherwise terminated as provided in this clause 13. After the Term, this agreement shall automatically renew for 12 month periods on the anniversary of the Effective Date, unless either party notifies the other, in writing, at least 60 days prior to the end of the then current term.
13.2 Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate this agreement without liability to the other if:
(a) the other party commits a material breach of any of the terms of this agreement and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach;
(b) an order is made or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order in relation to the other party;
(c) a receiver is appointed over any of the other party’s assets or undertaking;
(d) the other party makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way, or becomes bankrupt; or
(e) the other party ceases to trade;
13.3 On termination of this agreement for any reason:
(a) all licences granted under this agreement shall immediately terminate;
(b) each party shall return and make no further use of any Confidential Information belonging to the other party;
(c) the Supplier may delete or otherwise dispose of any of the Customer Data in its possession unless the Customer requests and agrees to pay for ongoing access to the Customer Databases and has paid all fees and charges outstanding at termination.
(d) the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.
14. Force Majeure
The Supplier shall have no liability to the Customer under this agreement if it is prevented from or delayed in performing its obligations under this agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood or storm.
15.1 A waiver of any right under this agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given.
15.2 Unless specifically provided otherwise, rights arising under this agreement are cumulative and do not exclude rights provided by law.
16.1 If any provision (or part of a provision) of this agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
16.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
17.1 The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
17.2 The Supplier may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
18. No partnership or Agency
Nothing in this agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
19.1 Any notice required to be given under this agreement shall be delivered by e-mail to the addresses in the Commercial Terms or by post to the address set out in this agreement, or such other address as may have been notified by that party for such purposes.
19.2 A notice delivered by e-mail shall be considered delivered by the close of business on the day it is sent or if delivery is not in business hours, at 9 am on the first business day following delivery.
SCHEDULE 1 – DEFINITION OF SERVICES PROVIDED
1. Hosting Service
The Hosting Services shall be provided by the Supplier and its hosting provider to provide access to the Software and the Customer Databases via the Internet on a 24/7 basis in accordance with the Service Level Arrangement set out in Schedule 2. The hosting facility shall adhere to strict international standards (eg: SSAE 16 Compliance) equipped with access security, climate control, fire suppression, managed power supply with UPS and generator back-up, load-balancing to distribute load and redundancy and will be maintained to the highest international hosting standards in order to achieve the level of availability set out in Schedule 2.
2. Access Authentication
The hosting facility shall be monitored 24 hours a day, seven days a week through closed circuit video surveillance, with intrusion detection systems and shall require strict permissions and identification for access only by authorised personnel. Access to the Software will require 3 level authentications requiring a valid combination of company ID, username and password. To protect the Company Databases, the server hosting the Software will be separated from the database server by a firewall with the database server having no direct user access except via the Software.
3. Internet connectivity
The Supplier shall provide multiple, diversely routed high-speed connections internet connectivity at the hosting facility. All data being transmitted by the Software over the Internet will be encrypted using 256bit encryption. The Customer is responsible for ensuring its Entities and Authorised Users have broadband internet access in order to access the Software.
4. Back-up, archiving and recovery services
The Supplier or its hosting provider shall perform scheduled off-site back-ups each night and maintain incremental backups of daily changes on site. The Supplier or its hosting provider will provide routine and emergency data recovery try to restore the most recent back-up where require
5. Maintenance Services
Maintenance of the hosting equipment, operating software, database software and other aspects of the hosting facility or of the Software (the “Maintenance Events”) and includes all regularly scheduled error corrections and software updates. The Customer may file error reports at any time if it determines that the Software includes a defect.
Maintenance may require interruption of the Hosting Services but shall not be performed during Normal Business Hours. The Supplier may determine, at its sole discretion, that providing appropriate service levels requires an upgrade or addition to equipment and/or bandwidth, and may install that equipment and/or bandwidth without approval from the Customer.
The Supplier may interrupt the Services to perform emergency maintenance and housekeeping of the hosting facility or the Software during the daily window of 2.00am to 6.00am. During maintenance periods, the Supplier may, at its discretion, upgrade versions, install error corrections and apply patches to the hosted systems. The Supplier shall use all reasonable efforts to avoid unscheduled downtime for Software maintenance.
In addition, the Supplier may interrupt the Hosting Services outside Normal Business Hours for unscheduled maintenance, provided that it has given the Customer at least 5 days advance notice. Any Maintenance Events which occur during Normal Business Hours, and which were not requested by the Customer, shall be considered downtime for the purpose of service availability measurement. The Supplier shall at all times endeavour to keep any service interruptions to a minimum.
Enhancements and improvements that the Supplier has made to the features of the Software may also be released with advance notice. Adaptations to remedy a fault may result in changes to certain functionality. If so the Customer will be warned in advance. The Supplier shall maintain technical support on the most current release of the Software only.
6. Technical support services
The Supplier shall provide the Customer with technical support services in relation to problems with the Software and the Hosted Services via its helpdesk. Support Requests (SRs) can be logged directly to the Helpdesk System via the relevant facility in the Software or can be called into the helpdesk by the Customer Project Manager or specific Authorised Users as agreed from time to time. The Supplier shall issue support reference numbers (SRNs), for all SRs which will allow the Customer to track progress on those SRs. SRs shall be logged by the Customer via the Software or via e-mail and in emergency via phone to our Helpdesk during Normal Business Hours.
The Supplier shall use reasonable endeavours to process SRs, issue SRNs if necessary, determine the source of the problem and respond to the Customer. The Supplier technical support call centre shall respond to all SRs within the time periods specified below, according to priority. The Customer Project Manager and Supplier Support Manager shall jointly determine the priority of any defect, if the Supplier is unhappy with the priority assigned. The priority assigned will be as follows:
|Initial Response Time||Target Resolution Time|
|1||The entire accountsIQ service is unavailable and no workaround.||
·Login process not working affecting all customers
·All system reports not working affecting all customers
·Core accounting functions not operational (affecting all customers) without workaround
|Within one business hour. Resource is assigned immediately and issue worked on until resolution.||
Within four hours of initial response. Continuous effort after initial response and with customer cooperation.
Issues such as these may be fixed in the form of a ‘hot fix’ which is released as soon as possible.
|2||Operation of accountsIQ is severely degraded, or major components of the system are not operational and the user cannot continue to work.||
·Important functions not working and with no workaround (e.g. manual bank rec, vat return)
·Data being corrupted due to a system fault (e.g. No tax line being recorded)
·Certain core reports not working
·API layer not functioning
|Within two business hours||
Within same business day.
Issues such as these may be fixed in the form of an immediate ‘Hot Fix’ or ‘Dated Fix’ which is released as soon as possible or on a specific date.
|3||Non-essential features of the system are impaired while most major components of the system remain functional and there are workarounds available.||·Minor system issue
·System configuration changes e.g. new user profiles
|Within eight normal business hours||
Depending on priority assessment issue will be assigned to:
·Development Backlog to be done at a later date
|4||Enhancement requests||·Requests for screen or report customization to benefit all users
·Bespoke changes for individual companies
|Within twelve normal business hours||
Depending on assessment of the enhancement requests these will be assigned to:
·Development Roadmap or
·Delivered based on acceptance of Quotation provided for specific enhancement request
·Single report not balancing or returning correct data
·Data import transaction problem
|Within twelve normal business hours||Support team will investigate these issues for 1 hour. After this time if the problem is not found to be an accountsIQ issue the work to correct the data will be charged at the Additional Service Fee Rate.|
If no progress has been made on a Priority 1 or Priority 2 incident within the Target Resolution Time, the incident shall be escalated to the Helpdesk Manager. If the incident is not resolved, then after each successive increment of the Target Resolution Time (for example four Business Hours for a Priority 1 incident, two Business Days for a Priority 2 incident), the incident shall be escalated to the Operations Director, followed by the Managing Director.
The Customer shall provide front-line support to its Authorised Users and the Authorised Users of its Entities. The Customer Project Manager and any designated Authorised Users agreed with the Supplier in advance, can report problems that they cannot resolve themselves after they have performed a reasonable level of diagnosis.
SCHEDULE 2 – Service Level Arrangements
1. Service availability
The Supplier shall provide at least a 99.5% uptime service availability level (Uptime Service Level). This availability refers to the ability to access the Software over the Internet. It does not apply to the Customer’s own access to the Internet – ie: the portion of the circuit that does not transit the hosting provider’s backbone network, as the Customer is responsible for its own internet access.
2. Availability measurement
Availability measurement shall be carried out by the Supplier and is based on the monthly average percentage availability, calculated at the end of each month as the total actual uptime minutes (Availability) divided by total possible uptime minutes (Maximum Availability) in the month. The Supplier shall keep and shall make available to the Customer, a report of its availability measurement activities under this agreement during each month. Maximum Availability excludes Maintenance Events as described in Schedule 1, Customer-caused outages or disruptions, or outages or disruptions attributable in whole or in part to force majeure events within the meaning of clause 14 of the General Terms and Conditions.
3. Service credits
If Availability falls below the Uptime Service Level (as defined above) in a given month, the Supplier shall credit the Customer’s account (Service Credit) for that month by an amount calculated as follows:
2 x (1 – Availability/ Maximum Availability) x the total Monthly Usage Fees due for that month.
A Service Credit shall not be payable unless the Customer requests it within 20 Business Days of the service-affecting event(s). The maximum Service Credit allowable in a given monthly is limited to half the total monthly Fees owed for that month.
The Customer acknowledges and agrees that the terms of this Schedule 2 relating to service credits do not operate by way of penalty and constitute a genuine attempt to pre-estimate loss.
This SLA excludes support or maintenance services arising from any act or omission of the Customer, which may have caused the Services to cease to be available or to function fully and correctly. For the avoidance of doubt, this shall include maintenance and support services undertaken by the Supplier at the request of the Customer to address such issues.
Any problems with the performance and/or access to the Services arising from the Customer’s network or communications links (e.g. the Customer’s broadband connections) are excluded from the support and maintenance coverage provided under the terms of this SLA
The Internet Browsers and recommended hardware and operating system settings to access the Services may change from time to time as the system develops and new browsers and versions of software become available.
The Supplier reserves the right to charge for support calls that relate to questions and requests for information concerning the use or implementation of the Software that would normally be covered in training or implementation.
The Supplier takes nightly offsite backups with rotation these every 28 days for recovery purposes. Recovery of backups other than as a result of corruption or loss of data caused by the Supplier is chargeable to the Customer at the Supplier’s standard rate as set out in the commercial terms.
The term ‘Visor Limited’ ‘AccountsIQ’ ‘us’ or ‘we’ refers to the owner of the website whose registered office is Sand House, Bath Place, Blackrock, County Dublin, Ireland. Our company registration number is 366570. The term ‘you’ refers to the user or viewer of our website.