THE FOLLOWING AGREEMENT APPLIES TO AN ON PREMISE SYSTEM:
THIS AGREEMENT
PARTIES:
(1) SSG INSIGHT (EMEA) LTD. (Company Number 01718131) 2 Burgage Square Merchant Gate, Wakefield, WF1 2TS (“the Supplier”);
(2) The Customer (“the Customer”).
1 Licence
1.1 In consideration of the Fee paid by the Customer to the Supplier, the Supplier grants to the Customer a Licence to Use the Software subject to the terms and conditions of this Agreement.
1.2 The Supplier shall Deliver the Software. If the Supplier has agreed to install the Software on the Customer’s Equipment it will do so in accordance with the Installation Arrangements for the Installation Charge.
1.3 The Customer shall pay to the Supplier the Fee and Installation Charge (if applicable) within 30 days of the date of invoice from the Supplier to the Customer.
1.4 Any charges payable under this Agreement are exclusive of any applicable VAT and other sales tax for which the Customer shall be responsible.
1.5 If the Customer fails to pay any amount payable by it under this Agreement the Supplier may charge the Customer interest on the overdue amount (payable by the Customer immediately on demand) at the rate of 4% per year above the base rate of The Bank of England, from the due date up to the date of actual payment whether before or after judgment.
1.6 The Customer may make only so many copies of the Software as are reasonably necessary for its lawful use. Such copies and the media on which they are stored shall be the property of the Supplier. The Customer shall record the number and location of all copies of the Software and take steps to prevent unauthorised copying of or use and produce such record to the Supplier on request. The Customer shall notify the Supplier as soon as it becomes aware of any unauthorised use of the Software by any person.
1.7 The Customer has no right to translate, adapt, vary, modify, disassemble, decompile or reverse engineer the Software except to the extent that any reduction of the Software to human readable form (whether by reverse engineering, decompilation or disassembly) is necessary for the purposes of integrating the operation of the Software with the operation of other software or systems used by the Customer unless the Supplier is prepared to carry out such action at a reasonable commercial fee or has provided the information necessary to achieve such integration within a reasonable period, and the Customer shall request the Supplier to carry out such action or to provide such information (and shall meet the Supplier ’s reasonable costs in providing that information) before undertaking any such reduction.
2 Maintenance and Support
2.1 The Supplier shall supply and the Customer shall take and pay for the Services.
2.2 The Supplier shall provide the Customer with any Maintenance Releases. If the Customer fails to install a Maintenance Release after the Supplier has notified the Customer that such Maintenance Release is available for installation and such failure means that the Supplier is unable to provide the Services, the Supplier shall be entitled to terminate this Agreement by one months’ written notice to the Customer.
3 Intellectual Property Rights
3.1 The Software and the Intellectual Property Rights of whatever nature in the Software are and shall remain the property of the Supplier.
3.2 The Supplier shall defend at the Customer’s expense any claim brought against the Customer alleging that the Use of the Software in accordance with this Agreement infringes the UK Intellectual Property Rights of a third party (“Claim”) provided that the Customer:
3.2.1 furnishes the Supplier with prompt written notice of the Claim and makes no comment or admission that may adversely affect the Supplier’s ability to defend or settle a Claim;
3.2.2 provides the Supplier with reasonable assistance in respect of the Claim; and
3.2.3 gives to the Supplier the sole authority to defend or settle the Claim.
3.3 If, in the Supplier’s reasonable opinion, the use of the Software is or may become the subject of a Claim then the Supplier shall either:
3.3.1 obtain for the Customer the right to continue using the Software which is the subject of the Claim; or
3.3.2 replace or, with the written consent of the Customer, modify the Software which is the subject of the Claim so they become non-infringing.
3.4 If the remedies set out in Clause 3.3 above are not in the Supplier’s opinion reasonably available (including on the grounds of cost), then the Customer shall return the Software which is the subject of the Claim and the Supplier shall refund to the Customer the Fee ( less a reasonable sum in respect of the Customer's use of the Software to the date of termination) whereupon this Agreement shall immediately terminate.
3.5 The Supplier shall have no liability for any Claim resulting from the Use of the Software in combination with any equipment (other than the Equipment) or programs not supplied or approved by the Supplier or any modification of any item of the Software by a party other than the Supplier or its authorised agent.
4 Warranties
4.1 The Supplier warrants that:
4.1.1 it has the right to enter into this Agreement and to grant the Licence to the Customer;
4.1.2 the Software will conform in all material respects to the Specification for a period of 90 days from the date of this Agreement (“Warranty Period”). If, within the Warranty Period, the Customer notifies the Supplier in writing of any defect or fault in the Software in consequence of which it fails to conform in all material respects to the Specification, and such defect or fault does not result from the Customer, or anyone acting with the authority of the Customer, having amended the Software or used it outside the terms of this Agreement for a purpose or in a context other than the purpose or context for which it was designed or in combination with any other software not provided by the Supplier, or it has not been loaded onto the Customer’s Equipment or other suitably configured equipment, the Supplier shall, at the Supplier’s option, do one of the following:
4.1.2.1 repair the Software;
4.1.2.2 replace the Software; or
4.1.2.3 terminate this Agreement immediately by notice to the Customer and refund any of the Fee (less a reasonable sum in respect of the Customer’s use of the Software to the date of termination) on return of the Software and all copies provided thereof,
provided the Customer provides all the information that may be necessary to assist the Supplier in resolving the defect or fault, including a documented example of any defect or fault, or sufficient information to enable the Supplier to re-create the defect or fault;
4.1.3 the Services will be performed with reasonable skill and care.
4.2 The Supplier does not warrant that the use of the Software will be uninterrupted or error-free.
4.3 The Supplier shall use its reasonable endeavours to procure that it and its servants, agents and subcontractors take all reasonable precautions to ensure that no known viruses for which detection and antidote software is generally available are coded or introduced into the Software.
4.4 The Customer accepts responsibility for the selection of the Software to achieve its intended results and acknowledges that the Software has not been developed to meet the individual requirements of the Customer.
4.5 All other conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into this Agreement, whether by statute, common law or otherwise, are hereby excluded, including the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose or the use of reasonable skill and care.
5 Liability
5.1 Except as expressly stated in clause 5.2:
5.1.1 the Supplier shall not in any circumstances have any liability for any losses or damages which may be suffered by the Customer (or any person claiming under or through the Customer), whether the same are suffered directly or indirectly or are immediate or consequential, and whether the same arise in contract, tort (including negligence) or otherwise howsoever, which fall within any of the following categories:
5.1.1.1 special damage even if the Supplier was aware of the circumstances in which such special damage could arise;
5.1.1.3 loss of anticipated savings;
5.1.1.4 loss of business opportunity;
5.1.1.5 loss of goodwill;
5.1.1.6 loss or corruption of data,
provided that this clause 5.1 shall not prevent claims for loss of or damage to the Customer's tangible property that fall within the terms of clause 5.1.2 or any other claims for direct financial loss that are not excluded by any of categories 5.1.1.1 to 5.1.1.6 inclusive of this clause 5.1.1;
5.1.2 the total liability of the Supplier, whether in contract, tort (including negligence) or otherwise and whether in connection with this Agreement or any collateral contract, shall in no circumstances exceed a sum equivalent to the price paid by the Customer to the Supplier for the products and services provided in the period of 12 months prior to which the liability arises.
5.2 The exclusions in clause 4.4 and clause 5.1 shall apply to the fullest extent permissible at law, but the Supplier does not exclude liability for:
5.2.1.1 death or personal injury caused by the negligence of the Supplier, its officers, employees, contractors or agents;
5.2.1.2 fraud or fraudulent misrepresentation;
5.2.1.3 breach of the obligations implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982.
6 Confidential information
6.1 Each party shall, during the term of this Agreement and thereafter, keep confidential, and shall not use for its own purposes, nor without the prior written consent of the other disclose to any third party, any and all information of a confidential nature (including trade secrets and information of commercial value) that may become known to such party from the other party, and which relates to the other party, unless such information is public knowledge or already known to such party at the time of disclosure, or subsequently becomes public knowledge other than by breach of this Agreement, or subsequently comes lawfully into the possession of such party from a third party.
6.2 The provisions of Clause 6 shall remain in full force and effect notwithstanding any termination of this Agreement.
7 Termination
7.1 This Agreement shall, unless otherwise terminated as provided in this clause 7, commence on the date of this Agreement and shall continue for the Initial Term. This Agreement shall be automatically renewed for successive periods of 12 months (each a Renewal Period), unless either party notifies the other party of termination, in writing, at least six months before the end of the Initial Term or any Renewal Period, in which case this Agreement shall terminate upon the expiry of the applicable Initial Term or Renewal Period.
7.2 Either party may terminate this Agreement immediately on giving notice in writing to the other party if:
7.2.1 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; or
7.2.2 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; or
7.2.3 an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the other party, or notice of intention to appoint an administrator is given by the other party or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986); or
7.2.4 a receiver is appointed of any of the other party's assets or undertaking, or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other party, or if any other person takes possession of or sells the other party's assets; or
7.2.5 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
7.2.6 the other party ceases, or threatens to cease, to trade; or
7.2.7 there is a change of control of the other party within the meaning of section 1124 of the Corporation Tax Act 2010; or
7.2.8 the other party takes or suffers any similar or analogous action in any jurisdiction in consequence of debt.
7.3 Save as expressly provided in Clauses 7.1 and 7.2 or elsewhere in this Agreement this Agreement may not be terminated.
7.4 Termination by either party in accordance with the rights contained in this Clause 7 shall not affect the accrued rights, remedies, obligations or liabilities of the parties existing at termination.
7.5 On termination for any reason:
7.5.1 all rights granted to the Customer under this Agreement shall cease;
7.5.2 the Customer shall cease all activities authorised by this Agreement;
7.5.3 the Customer shall immediately pay to the Supplier any sums due to the Supplier under this Agreement; and
7.5.4 the Customer shall immediately destroy or return to the Supplier (at the Supplier’s option) all copies of the Software then in its possession, custody or control and, in the case of destruction, certify to the Supplier that it has done so.
8 Non-solicitation
The Customer shall not, for the duration of this agreement, and for a period of 12 months following termination, directly or indirectly induce or attempt to induce any employee of the Supplier who has been engaged in the provision, receipt, review or management of the Services or otherwise in connection with this Agreement to leave the employment of the Supplier.
9 Dispute resolution
9.1 It is the intention of the parties to settle amicably by negotiation all disagreements and differences of opinion on matters of performance, procedure and management arising out of this Agreement. Accordingly, it is agreed that the procedure set out in this clause 9 shall be followed in relation to any matter of dispute between the parties concerning performance, procedure or management.
9.2 If any disagreement or difference of opinion arises out of this Agreement, the matter shall be disposed of as follows:
9.2.1 the Manager and the Support Manager shall meet to attempt resolution. Should they not meet within 14 days of the date on which either party convenes a meeting to resolve the matter or should they not be able to resolve the matter with 14 days of first meeting; then
9.2.2 the matter shall promptly be referred by either party to the Project Owner of the Customer and the Project Owner of the Supplier for immediate resolution.
9.3 If, within 14 days of the matter first having been referred to the persons referred to in Clause 9.2.2 no agreement has been reached as to the matter in dispute, the dispute resolution process set out in this clause 9 shall be deemed to have been exhausted in respect of the matter in dispute, and each party shall be free to pursue the rights granted to it by this Agreement in respect of such matter without further reference to the dispute resolution process.
For the duration of this Agreement, the Manager and the Support Manager shall meet at least once a year at a location and time to be agreed between the Manager and the Support Manager for the purposes of discussing the provision of the Services and any other appropriate matters.
11 Interpretation
11.1 The definitions in Schedule 1 apply in this Agreement and the rules of interpretation in this clause apply in this Agreement.
11.2 Holding company and subsidiary mean a "holding company" and "subsidiary" as defined in section 1159 of the Companies Act 2006.
11.3 Clause, Schedule and paragraph headings shall not affect the interpretation of this Agreement.
11.4 Unless the context otherwise requires (a) words in the singular shall include the plural and in the plural shall include the singular, (b) a reference to a statute or statutory provision is a reference to it is in force as at the date of this Agreement, (c) a reference to one gender shall include a reference to the other genders and (d) any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
11.5 In the case of conflict or ambiguity between any provision contained in the body of this Agreement and any provision contained in the schedules or appendices, the provision in the body of this Agreement shall take precedence.
11.6 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person's personal representatives, successors and permitted assigns.
11.7 References to clauses and Schedules are to the clauses and Schedules of this Agreement and references to paragraphs are to paragraphs of the relevant Schedule.
12 General
12.1 This agreement shall not constitute or imply any partnership, joint venture, agency, fiduciary or other relationship between the parties other than the contractual relationship expressly provided for in this Agreement.
12.2 This agreement may not be released, discharged, supplemented, interpreted, amended, varied or modified in any manner except by an instrument in writing signed by a duly authorised officer or representative of each party.
12.3 The Customer shall not sub-licence or assign or novate the benefit or burden of this licence in whole or in part, allow the Software to become subject to any charge, lien or encumbrance or deal in any other manner with any of its rights and obligations under this Agreement without the prior written consent of the Supplier, such consent not to be unreasonably withheld.
12.4 This agreement (together with the Schedules) supersedes all prior agreements, arrangements and undertakings between the parties and constitutes the entire agreement between the parties relating to its subject matter. The parties confirm that they have not entered into this Agreement on the basis of and have no remedies in respect of any representation that is not expressly incorporated into this Agreement.
12.5 Neither party shall have any liability under or be deemed to be in breach of this Agreement for any delays or failures in performance of this Agreement which result from circumstances beyond the reasonable control of that party. If such circumstances continue for a continuous period of more than six months, the non-affected party may terminate this Agreement by written notice to the other party.
12.6 All notices under this Agreement shall be in writing and must be in English. Notices shall be deemed to have been duly given when delivered, if delivered by hand, courier or other messenger (including registered mail) during normal business hours of the recipient on the fifth business day of the sender following mailing, if mailed by national ordinary mail, postage prepaid, in each case addressed to the most recent address notified to the other party.
12.7 If any provision of this Agreement is or becomes prohibited by law or is judged by a court to be unlawful, void or unenforceable, the provision shall, to the extent required, be severed from this Agreement and rendered ineffective as far as possible without modifying the remaining provisions of this Agreement, and shall not in any way affect any other circumstances of or the validity or enforcement of the remainder of this Agreement.
12.8 Unless a party expressly waives its rights in writing, no delay, neglect or forbearance by either party in enforcing against the other party any term or condition of this Agreement shall either be or be deemed to be a waiver or in any way prejudice any right of that party under this Agreement. No right, power or remedy in this Agreement conferred upon or reserved for either party is exclusive of any other right, power or remedy available to that party.
12.9 This agreement may be executed in any number of counterparts, each of which shall be an original, and such counterparts shall together constitute one and the same agreement.
12.10 Without prejudice to any right or remedy of a third party which exists or is available apart from such Act, a person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.
12.11 This agreement and any disputes arising out of it or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by or construed in accordance with the law of England and Wales. The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
This agreement has been entered into on the date stated at the beginning of it.
Schedule 1 Definitions
Authorised Users: those employees, agents and independent contractors of the Customer who are authorised by the Customer to Use the Licence.
Business Requirements Specification: the specification prepared in accordance with Part 2 of Schedule 4.
Charges: the charges payable for the Services under this Agreement.
Critical Fault : a reproducible fault which substantially hinders or prevents the Customer from using a material part of the functionality of the Software.
Deliver: electronically to the Customer stated in this Agreement within 14 days of signature of this Agreement or in accordance with the Installation Arrangements.
Equipment: computer equipment that exceeds the minimum requirements published by the Supplier from time to time.
Fee: the fee set out in Schedule 2.
Help Desk Support: any support provided by help desk technicians sufficiently qualified and experienced to identify and resolve most support issues relating to the Software.
Implementation Support Time: any technical support services listed in Part 1 of Schedule 3 provided by the Supplier at the Customer’s request.
Initial Term: the period of three years commencing on the date of this Agreement.
Intellectual Property Rights : all patents, copyrights, design rights, trade marks, service marks, trade secrets, know-how, database rights and other rights in the nature of intellectual property rights (whether registered or unregistered) and all applications for the same, anywhere in the world.
Installation Arrangements: the arrangements for the Supplier to install the Software on the Customer’s Equipment as set out in Part 2 of Schedule 3.
Installation Charge: the fee set out in Part 2 of Schedule 3.
Licence: a perpetual, non-exclusive licence of the Software commencing on and including the date of this Agreement.
Maintenance Release : a Service Pack Release or New Version Release of the Software that corrects faults, adds functionality or otherwise amends or upgrades the Software, but which does not constitute a New Product.
New Product: any new version of the Software which from time to time is publicly marketed and offered for purchase by the Supplier in the course of its normal business, being a version which contains such significant differences from the previous versions as to be generally accepted in the marketplace as constituting a new product.
New Version Release: a planned major release of the Software that corrects faults, adds new functionality or otherwise amends or upgrades the Software, but which does not constitute a New Product
Non-Critical Fault : any reproducible fault in the Software other than a Critical Fault.
Optional Services: the optional services more particularly described in Part 2 of Schedule 3 and any other services that the Customer and the Supplier may from time to time agree shall be supplied to the Customer by the Supplier under the terms of this Agreement.
Project Owner: the person who has overall responsibility for the respective Customer’s and Supplier’s obligations under the Installation Agreement.
Services: includes (as appropriate) the Support Services and any Optional Services.
Service Levels: the services as set out in Part 5 of Schedule 3.
Service Pack Release: a regular planned release of the Software that corrects faults or otherwise amends or upgrades the Software, but which does not constitute a New Version or New Product.
Software: “Agility” Maintenance Management Software (in object code form) and any Maintenance Release and all user documentation in respect of such programs.
Specification: the specification set out in the Supplier’s on-line help documentation and user manual provided with the Software.
Support Hours: the hours of 9 am to 5.30 pm Monday to Friday except on days which are bank holidays in England.
Support Manager : the person appointed by the Supplier from time to time who shall be responsible for the co-ordination of all matters relating to the Services.
Support Period: each 12 month period in the Initial Term and each subsequent Renewal Period commencing on the date software is made available for use by the Customer
Support Services: the support services more particularly described in Part 1 of Schedule 3.
Supported Software: the Software and any Maintenance Releases which are acquired by the Customer during the course of this Agreement.
Use: processing the Customer’s data for the normal business purposes of the Customer on the Equipment by the Authorised Users.
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Licence |
Number of Authorised Users |
Fee
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Schedule 3 Services
Part 1.Support Services
During the Support Period the Supplier shall perform the Support Services during the Support Hours in accordance with the Service Levels.
As part of Support Services the Supplier shall provide:
The Implementation Support Time can be used for:
Unused Implementation Support Time in any Support Period will not be carried over into the following Support Period and will expire at the end of the current Support Period. Any additional Implementation Support Time required will be charged at the rates shown in Part 3 of Schedule 3.
The Supplier shall be entitled, on prior notice to the Customer, to make changes to the Services provided such changes do not have a material adverse effect on the Customer’s business operations.
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Implementation Support Time included for each Support Period: |
[ ] days |
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Project management review frequency: |
Annual |
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The Support charges for the Support Services for each Support Period are: |
Ł[ ] |
Such charges shall be paid annually in advance by the Customer to the Supplier within 30 days of the date of the Supplier’s invoice.
Part 2. Installation Arrangements
The Supplier will implement the Software in accordance with proposal reference [ ].
A Business Requirement Specification will be produced to document the scope of work required to meet the Customer’s requirements and this will be signed by the Customer and Supplier prior to configuration of the Software.
Implementation of the Software shall be deemed to be accepted upon the Customer certifying the acceptance tests as successful or when the Software has been put into operational use by the Customer, whichever is the earlier.
The Installation Charge to deliver the Installation Arrangements as defined in the proposal and signed Business Requirement Specification will be Ł[ ].
The Customer shall pay the Implementation Charge within 30 days of the date of invoice from the Supplier to the Customer.
Part 3. Optional Services
The Customer may from time to time request the Supplier to supply Optional Services, such as training, form customisation, report writing and data loading, subject to the availability of appropriate resources at the time in question.
Such charges shall be paid in advance by the Customer to the Supplier within 30 days of the date of the Supplier’s invoice.
Part 4.Expenses
The Customer shall reimburse any reasonable expenses incurred by the Supplier (which are not included in the Services) where such expenses are incurred wholly and exclusively for the purpose of providing on-site support as part of the Services, provided that any request for reimbursement is in the form of a proper invoice accompanied by appropriate receipts.
Part 5. Service Levels
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Priority |
Resolution Target |
Impact on business
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Priority 1 (immediate)
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2 days |
Critical Fault that materially impacts on the operations of the Customer’s business and the Customer’s access to its database
* Priority 1 Requests causing the system to be unavailable are caused by either Hardware failure, or introduction of Application changes causing catastrophic failure. Whereas all reasonable efforts will be made to correct such urgent calls without loss of data, the resolution for such cases may be for the Customer to rebuild hardware / restore data / applications where applicable, or to revert to a previously known application version, and revert to a data backup. In such cases, it shall be the decision of the Customer whether to save down time and revert to backup, or whether the business is prepared to wait for further solution to limit data loss
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Priority 2 (High) |
30 days |
Non-Critical Fault that affects the operations of the Customer’s business but does not affect the Customer’s access to its database
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Priority 3 (Standard)
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60 days |
Non-Critical Fault that does not affect the operations of the Customer’s business |
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Priority 4 (Next Release)
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Solution in the next Maintenance Release |
Minor error that does not affect Software functionality |
Part 6.Exclusions
Where a Non-Critical Fault is to be corrected in a forthcoming Maintenance Release, then for a reasonable period prior to the issue of such Maintenance Release the Supplier shall be entitled to decline to provide assistance in respect of that Non-Critical Fault.
The Supplier shall have no obligation to provide the Services where faults arise from misuse, incorrect use of or damage to the Software or failure to maintain the necessary environmental conditions for use of the Software or use of the Software in combination with any equipment or software not provided by the Supplier, or any fault in any such equipment or software or relocation and/or installation of the Software by any person other than the Supplier or a person acting under the Supplier's instructions or any breach of the Customer's obligations under this agreement.
Part 7.Charges
The Supplier shall be entitled to increase the charges payable for any of the Services with effect from each anniversary of the date of this Agreement. Any such increase shall be notified to the Customer at least 30 days prior to such anniversary (and Schedule 3 shall be deemed to be amended accordingly).
Part 8. Customer’s Responsibilities
Schedule 4 Payment Plan
The Customer will pay sum of Ł[ ] comprising [the Fee, Support Charges and the Installation Charge] to the Supplier in accordance with the following payment plan:
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Milestone
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% Year to 1 Contract Value |
Value |
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On signing the agreement |
[ 50 ]% |
Ł[ ]
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On software delivery |
[ 50 ]% |
Ł[ ]
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………………………………………………………...................
SIGNED by for and on
behalf of the Supplier
PRINT & DATE……………………………………….
………………………………………………………….................
SIGNED by for and on
behalf of the Customer
PRINT & DATE……………………………………….
THE FOLLOWING AGREEMENT APPLIES TO A SUBCRIPTION BASED SERVICE:
THIS AGREEMENT
PARTIES
In consideration of the Subscription Fees paid by the Customer to the Supplier, the Supplier grants to the Customer a non-exclusive, non-transferable right to permit the Authorised Users to use the Services and the Documentation during the Subscription Term subject to the terms and conditions of this Agreement.
The Intellectual Property Rights of whatever nature in the Software and the Documentation are and shall remain the property of the Supplier.
The Customer shall not, for the duration of this Agreement, and for a period of 12 months following termination, directly or indirectly induce or attempt to induce any employee of the Supplier who has been engaged in the provision, receipt, review or management of the Services or otherwise in connection with this Agreement to leave the employment of the Supplier.
This Agreement has been entered into on the date stated at the beginning of it.
Schedule 1 Definitions
Authorised Users: those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Services and the Documentation.
Business Day: any day which is not a Saturday, Sunday or Public Holiday.
Business Requirements Specification: the specification prepared in accordance with Part 2 of Schedule 3.
Critical Fault: a reproducible fault which substantially hinders or prevents the Customer from using a material part of the functionality of the Software.
Customer Data: all of the data inputted by the Customer, Authorised User or the Supplier on the Customer’s behalf.
Documentation: the document made available to the Customer by the Supplier online via [INSERT WEB ADDRESS] or such other web address notified by the Supplier to the Customer from time to time which sets out a description of the Services and the user instructions for the Services.
Help Desk Support: any support provided by help desk technicians sufficiently qualified and experienced to identify and resolve most support issues relating to the Software.
Implementation Arrangements: the arrangements for the Supplier to implement the Software as set out in Business Requirements Specification.
Implementation Charge: the fee set out in Part 2 of Schedule 3.
Implementation Support Time: the number of days (if any) shown in Part 1 of Schedule 2 in which the Supplier will provide any of the Services listed in Part 3 of Schedule 3 at the Customer’s request in accordance with Part 1 of Schedule 3.
Initial Term: the period of three years commencing on the date of this Agreement.
Intellectual Property Rights: all patents, copyrights, design rights, trade marks, service marks, trade secrets, know-how, database rights and other rights in the nature of intellectual property rights (whether registered or unregistered) and all applications for the same, anywhere in the world.
Maintenance Release: a Service Pack Release or New Version Release of the Software that corrects faults, adds functionality or otherwise amends or upgrades the Software, but which does not constitute a New Product.
Manager: a manager nominated by the Customer to be available to liaise with, and respond to queries from, the Support Manager.
New Product: any new version of the Software which from time to time is publicly marketed and offered for purchase by the Supplier in the course of its normal business, being a version which contains such significant differences from the previous versions as to be generally accepted in the marketplace as constituting a new product.
New Version Release: a planned major release of the Software that corrects faults, adds new functionality or otherwise amends or upgrades the Software, but which does not constitute a New Product
Non-Critical Fault: any reproducible fault in the Software other than a Critical Fault.
Normal Business Hours: 9 am to 5.30 pm local UK time, each Business Day.
Optional Services: the optional services more particularly described in Part 3 of Schedule 3 and any other services that the Customer and the Supplier may from time to time agree shall be supplied to the Customer by the Supplier under the terms of this Agreement.
Project Owner: the person who has overall responsibility for the respective Customer’s and Supplier’s obligations under the Installation Agreement.
Renewal Period:has the meaning given inclause 12.1.
Service Levels: the response targets as set out in Part 5 of Schedule 3.
Service Pack Release: a regular planned release of the Software that corrects faults or otherwise amends or upgrades the Software, but which does not constitute a New Version or New Product.
Services: the subscription services provided by the Supplier to the Customer under this Agreement via [INSERT WEB ADDRESS] or any other website notified to the Customer by the Supplier from time to time, as more particularly described in the Documentation.
Software: the online “Agility” Maintenance Management Software applications provided by the Supplier as part of the Services.
Subscription Fees: the fees payable by the Customer to the Supplier for the User Subscriptions calculated in accordance with Schedule 2.
Subscription Term: the Initial Term together with any subsequent Renewal Periods.
Support Hours: the hours of 9 am to 5.30 pm Monday to Friday except on days which are bank holidays in England.
Support Manager: the person appointed by the Supplier from time to time who shall be responsible for co-ordination of all matters relating to the Services.
Support Period: each 12 month period in the Initial Period and each subsequent Renewal Period.
Support Services: the standard support services more particularly described in Part 1 of Schedule 3 as amended by the Supplier in its sole and absolute discretion from time to time.
User Subscriptions: the user subscriptions purchased by the Customer pursuant to Part 1 and Part 2 of Schedule 2 which entitle Authorised Users to access and use the Services and the Documentation in accordance with this Agreement.
Schedule 2 Subscription Fees
Part 1. Annual Subscription Fees
|
Subscription |
Licence Type |
Quantity |
Price per subscription |
Amount |
|
Agility |
Concurrent User |
|
Ł |
|
|
Mobile Expert |
Named User |
|
Ł |
|
|
Implementation Support Time |
N/A |
[ ] days |
Ł |
|
|
Total Subscription |
|
|||
The Customer shall invoice the Supplier on signature of this Agreement for the Subscription Fees payable in respect of the 12 month period commencing on the date of this Agreement and on each anniversary of signature of this Agreement for the Subscription Fees payable in respect of the next 12 month period of this Agreement and the Customer shall pay each invoice within 30 days of the date of such invoice.
Part 2. Additional User Subscription Fees
Additional User Subscriptions may be purchased by the Customer at the following prices per User Subscription.
|
Subscription |
Licence Type |
Price per subscription |
|
Agility |
Concurrent User |
Ł |
|
Mobile Expert |
Named User |
Ł |
|
|
|
|
The Customer shall, within 30 days of the date of the Supplier’s invoice, pay to the Supplier the relevant fees for such additional User Subscriptions and i f such additional User Subscriptions are purchased by the Customer part way through a 12 month period as set out above, such fees shall be pro-rated for the remainder of the applicable 12 month period.
Maximum Disk Storage Space: 1 GB
If the Customer exceeds the specified amount of disk storage space the Supplier shall charge the Customer the Supplier’s then current excess data storage fees (Ł/GB/Month at the date of this Agreement).
During the Subscription Term the Supplier shall perform the Support Services during the Support Hours in accordance with the Service Levels.
As part of Support Services the Supplier shall provide:
· Help Desk Support via telephone (01924 200344)
· Help Desk Support via email ( support@ssginsight.com )
· Service Pack Releases
· New Version Releases
· Technical support in accordance with the Service Levels
· Implementation Support Time
Unused Implementation Support Time in any Support Period will not be carried over into the following Support Period and will expire at the end of the current Support Period. Any additional Implementation Support Time required will be charged at the rates shown in Part 3 of Schedule 3.
The Supplier shall be entitled, on prior notice to the Customer, to make changes to the Services provided such changes do not have a material adverse effect on the Customer’s business operations.
Part 2. Implementation Arrangements
The Supplier will implement the Software in accordance with proposal reference [ ].
A Business Requirement Specification will be produced to document the scope of work required to meet the Customer’s requirements and this will be signed by the Customer and Supplier prior to configuration of the Software.
Implementation of the Software shall be deemed to be accepted upon the Customer certifying the acceptance tests as successful or when the Software has been put into operational use by the Customer, whichever is the earlier. The Implementation Charge to deliver the Arrangements as defined in the proposal and signed Business Requirement Specification will be Ł[ ].
The Customer shall pay the Implementation Charge within 30 days of the date of invoice from the Supplier to the Customer.
Part 3.Optional Services
The Customer may from time to time request the Supplier to supply Optional Services, such as training, form customisation, report writing and data loading, subject to the availability of appropriate resources at the time in question.
The charges for the Optional Services are:
[Insert price list]
Such charges shall be paid in advance by the Customer to the Supplier within 30 days of the date of the Supplier’s invoice.
Part 4.Expenses
The Customer shall reimburse any reasonable expenses incurred by the Supplier (which are not included in the Services) where such expenses are incurred wholly and exclusively for the purpose of providing on-site support as part of the Optional Services, provided that any request for reimbursement is in the form of a proper invoice accompanied by appropriate receipts.
Part 5.Service Levels
|
Priority |
Resolution Target |
Impact on business
|
|
Priority 1 (immediate)
|
2 days |
Critical Fault that materially impacts on the operations of the Customer’s business and the Customer’s access to the Agility System
* Priority 1 Requests causing the system to be unavailable are caused by either Hardware failure, or introduction of Application changes causing catastrophic failure. Whereas all reasonable efforts will be made to correct such urgent calls without loss of data, the resolution for such cases may be to rebuild hardware / restore data / applications where applicable, or to revert to a previously known application version, and revert to a data backup which may result in loss of data. In such cases, it shall be the decision of the Customer whether to save down time and revert to backup, or whether the business is prepared to wait for further solution reduce the extent of the potential data loss |
|
Priority 2 (High) |
30 days |
Non-Critical Fault that affects the operations of the Customer’s business but does not affect the Customer’s access to the Agility System |
|
Priority 3 (Standard) |
60 days |
Non-Critical Fault that does not affect the operations of the Customer’s business |
|
Priority 4 (Next Release) |
Solution in the next New Version Release |
Minor error that does not affect Software functionality |
Part 6.Exclusions
Where a Non-Critical Fault is to be corrected in a forthcoming Maintenance Release, then for a reasonable period prior to the issue of such Maintenance Release the Supplier shall be entitled to decline to provide assistance in respect of that Non-Critical Fault.
The Supplier shall have no obligation to provide the Services where faults arise from misuse, incorrect use of or damage to the Software or failure to maintain the necessary environmental conditions for use of the Software or use of the Software in combination with any equipment or software not provided by the Supplier, or any fault in any such equipment or software or relocation and/or installation of the Software by any person other than the Supplier or a person acting under the Supplier's instructions or any breach of the Customer's obligations under this Agreement.
Part 7.Meetings
For the duration of this Agreement, the Manager and the Support Manager shall meet at least once a year at a location and time to be agreed between the Manager and the Support Manager for the purposes of discussing the provision of the Services, Support Services and any other appropriate matters.
Schedule 4 Customer’s Undertakings
Schedule 5 Payment Plan
The Customer will pay the sum the Subscription Fee, Implementation Charge and charges for Optional Services (if any) for the 12 month period commencing on the date of this Agreement to the Supplier in accordance with the following payment plan:
|
Milestone
|
Payment due |
Value |
|
On signing the agreement |
[ 50 ]% |
Ł[ ]
|
|
On Software delivery |
[ 50 ]% |
Ł[ ]
|
|
............................................... SIGNED by [NAME] for and on behalf of the Supplier
|
|
|
............................................... SIGNED by [NAME] for and on behalf of the Customer
|
|