Set up Services

• The Provider shall provide the Set Up Services to the Customer.
• The Provider shall ensure that the Set Up Services are provided upon or promptly following the Effective Date.
• The Customer acknowledges that a delay in the Customer performing its obligations in this Agreement may result in a delay in the performance of the Set Up Services; and subject to Clause 27.1 the Provider will not be liable to the Customer in respect of any failure to meet the Set Up Services timetable to the extent that that failure arises out of a delay in the Customer performing its obligations under this Agreement.
• Subject to any written agreement of the parties to the contrary, any Intellectual Property Rights that may arise out of the performance of the Set Up Services by the Provider shall be the exclusive property of the Provider.

Acceptance procedure

• During each Acceptance Period, the Customer shall carry out the Acceptance Tests.
• The Provider shall provide to the Customer at the Customer’s cost and expense all such assistance and co-operation in relation to the carrying out of the Acceptance Tests as the Customer may reasonably request.
• Before the end of each Acceptance Period, the Customer shall give to the Provider a written notice specifying whether the Hosted Services have passed or failed the Acceptance Tests.
• If the Customer fails to give to the Provider a written notice in accordance with Clause 4.3, then the Hosted Services shall be deemed to have passed the Acceptance Tests.
• If the Customer notifies the Provider that the Hosted Services have failed the Acceptance Tests, then the Customer must provide to the Provider, at the same time as the giving of the notice, written details of the results of the Acceptance Tests including full details of the identified failure.
• If the Customer notifies the Provider that the Hosted Services have failed the Acceptance Tests:

(a)    if the Provider acting reasonably agrees with the Customer that the Hosted Services do not comply with the Acceptance Criteria, then the Provider must correct the issue and make available the corrected Hosted Services to the Customer before the end of the Remedy Period for a further round of Acceptance Tests; or

(b)    otherwise, then the parties must meet as soon as practicable and in any case before the expiry of the Remedy Period and use their best endeavours to agree whether the Hosted Services do not comply with the Acceptance Criteria, and if appropriate a plan of action reasonably satisfactory to both parties, and they must record any agreement reached in writing.

• Notwithstanding the other provisions of this Clause 4, but subject to any written agreement of the parties to the contrary, the maximum number of rounds of Acceptance Tests under this Clause 4 shall be 3, and if the Acceptance Criteria have not been met by the end of the final round of Acceptance Tests, the Provider shall be deemed to be in material breach of this Agreement.
• A notification by the Customer that the Hosted Services have passed the Acceptance Tests will not prejudice the Customer’s rights in the event of a breach of any warranty given by the Provider to the Customer in this Agreement in relation to the Hosted Services; nor will any deemed passing of the Acceptance Tests under this Clause 4.

Hosted Services

• The Provider shall create an Account for the Customer and shall provide to the Customer login details for that Account upon the completion of the Set Up Services.
• The Provider hereby grants to the Customer a worldwide, non-exclusive licence to use the Hosted Services by means of a Supported Web Browser for the internal business purposes of the Customer in accordance with the Documentation during the Term.
• The licence granted by the Provider to the Customer under Clause 5.2 is subject to the following limitations:

(a)    the Hosted Services may only be used by the officers, employees, agents and subcontractors of either the Customer or an Affiliate of the Customer; and

(b)    the Hosted Services must not be used at any point in time by more than the number of concurrent users specified in Schedule 1 (Hosted Services particulars), providing that the Customer may add or remove concurrent user licences in accordance with the procedure set out therein.

• Except to the extent expressly permitted in this Agreement or required by law on a non-excludable basis, the licence granted by the Provider to the Customer under Clause 5.2 is subject to the following prohibitions:

(a)    the Customer must not sub-license its right to access and use the Hosted Services;

(b)    the Customer must not permit any unauthorised person to access or use the Hosted Services;

(c)    the Customer must not use the Hosted Services to provide services to third parties;

(d)    the Customer must not republish or redistribute any content or material from the Hosted Services; and

(e)    the Customer must not make any alteration to the Platform, except as permitted by the Documentation.

• The Customer shall use reasonable endeavours, including reasonable security measures relating to administrator Account access details, to ensure that no unauthorised person may gain access to the Hosted Services using an administrator Account.
• The parties acknowledge and agree that Schedule 3 (Availability SLA) shall govern the availability of the Hosted Services.
• The Customer must comply with Schedule 2 (Acceptable Use Policy), and must ensure that all persons using the Hosted Services with the authority of the Customer or by means of an administrator Account comply with Schedule 2 (Acceptable Use Policy).
• The Customer must not use the Hosted Services in any way that causes, or may cause, damage to the Hosted Services or Platform or impairment of the availability or accessibility of the Hosted Services.
• The Customer must not use the Hosted Services:

(a)    in any way that is unlawful, illegal, fraudulent or harmful; or

(b)    in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.

• For the avoidance of doubt, the Customer has no right to access the software code (including object code, intermediate code and source code) of the Platform, either during or after the Term.

Customisations

• The Provider and the Customer may agree that the Provider shall design, develop and implement a Customisation or Customisations in accordance with a specification and project plan agreed in writing by the parties.
• All Intellectual Property Rights in the Customisations shall, as between the parties, be the exclusive property of the Provider (unless the parties agree otherwise in writing).
• From the time and date when a Customisation is first delivered or made available by the Provider to the Customer, the Customisation shall form part of the Platform, and accordingly from that time and date the Customer’s rights to use the Customisation shall be governed by Clause 5.
• The Customer acknowledges that the Provider may make any Customisation available to any of its other customers or any other third party.

Maintenance Services

• The Provider shall provide the Maintenance Services to the Customer during the Term.
• The Provider shall provide the Maintenance Services in accordance with the standards of skill and care reasonably expected from a leading service provider in the Provider’s industry.
• The Provider shall provide the Maintenance Services in accordance with Schedule 4 (Maintenance SLA).
• The Provider may suspend the provision of the Maintenance Services if any amount due to be paid by the Customer to the Provider under this Agreement is overdue, and the Provider has given to the Customer at least 30 days’ written notice, following the amount becoming overdue, of its intention to suspend the Maintenance Services on this basis.

Support Services

• Cocentric shall provide the Support Services to the Customer during the Term.
• Cocentric shall provide the Support Services in accordance with the standards of skill and care reasonably expected from a leading service provider in the Provider’s industry.
• Cocentric shall provide the Support Services in accordance with Schedule 5 (Support SLA).
• Cocentric may suspend the provision of the Support Services if any amount due to be paid by the Customer to Cocentric under this Agreement is overdue, and Cocentric has given to the Customer at least 30 days’ written notice, following the amount becoming overdue, of its intention to suspend the Support Services on this basis.

Customer obligations

• Save to the extent that the parties have agreed otherwise in writing, the Customer must provide to the Provider, or procure for the Provider, such:

(a)    co-operation, support and advice;

(b)    information and documentation; and

(c)    governmental, legal and regulatory licences, consents and permits,

as are reasonably necessary to enable the Provider to perform its obligations under this Agreement.

• The Customer must provide to the Provider, or procure for the Provider, such access to the Customer’s computer hardware, software, networks and systems as may be reasonably required by the Provider to enable the Provider to perform its obligations under this Agreement.

Customer Systems

• The Customer shall ensure that the Customer Systems comply, and continue to comply during the Term, with the requirements of Part 3 of Schedule 1 (Hosted Services particulars) in all material respects, subject to any changes agreed in writing by the Provider.

Customer Data

• The Customer hereby grants to the Provider a non-exclusive licence to copy, reproduce, store, distribute, publish, export, adapt, edit and translate the Customer Data to the extent reasonably required for the performance of the Provider’s obligations and the exercise of the Provider’s rights under this Agreement. The Customer also grants to the Provider the right to sub-license these rights to its hosting, connectivity and telecommunications service providers to the extent reasonably required for the performance of the Provider’s obligations and the exercise of the Provider’s rights under this Agreement, subject always to any express restrictions elsewhere in this Agreement.
• The Customer warrants to the Provider that the Customer Data when used by the Provider in accordance with this Agreement will not infringe the Intellectual Property Rights or other legal rights of any person, and will not breach the provisions of any law, statute or regulation, in any jurisdiction and under any applicable law.
• The Provider shall create a back-up copy of the Customer Data at least daily, shall ensure that each such copy is sufficient to enable the Provider to restore the Hosted Services to the state they were in at the time the back-up was taken, and shall retain and securely store each such copy for a minimum period of 7 days.
• Within the period of 1 Business Day following receipt of a written request from the Customer, the Provider shall use all reasonable endeavours to restore to the Platform the Customer Data stored in any back-up copy created and stored by the Provider in accordance with Clause 11.3. The Customer acknowledges that this process will overwrite the Customer Data stored on the Platform prior to the restoration.

Integrations with Third Party Services

• The Hosted Services are integrated with those Third Party Services identified [where] as at the Effective Date. The Provider may integrate additional Third Party Services with the Hosted Services at any time.
• The Provider may remove, suspend or limit any Third Party Services integration at any time in its sole discretion.
• The supply of Third Party Services shall be under a separate contract or arrangement between the Customer and the relevant third party. The Provider does not contract to supply the Third Party Services and is not a party to any contract for, or otherwise responsible in respect of, the provision of any Third Party Services. Fees may be payable by the Customer to the relevant third party in respect of the use of Third Party Services.
• The Customer acknowledges that:

(a)    the integration of Third Party Services may entail the transfer of Customer Data from the Hosted Services to the relevant Third Party Services; and

(b)    the Provider has no control over, or responsibility in respect of, any disclosure, modification, deletion or other use of Customer Data resulting from any integration with any Third Party Services.

• Without prejudice to its other obligations under this Clause 12, the Customer must ensure that it has in place the necessary contractual safeguards to ensure that both:

(a)    the transfer of relevant Customer Personal Data to a provider of Third Party Services is lawful; and

(b)    the use of relevant Customer Personal Data by a provider of Third Party Services is lawful.

• The Customer shall have the opportunity to consent to transfers of Customer Data to any Third Party Services operator. The Provider must ensure that such transfers shall not take place without the consent of the Customer.
• The Customer hereby consents to the transfer of the Customer Data to the Third Party Services.
• The use of some features of the Hosted Services may depend upon the Customer enabling and agreeing to integrations between the Hosted Services and Third Party Services.
• The Customer warrants to the Provider that the transfer of Customer Data by the Provider to a provider of Third Party Services in accordance with this Clause 12 will not infringe any person’s legal or contractual rights and will not put the Provider in breach of any applicable laws.
• Additional Charges may be payable by the Customer to the Provider in respect of a Third Party Services integration.
• Save to the extent that the parties expressly agree otherwise in writing and subject to Clause 27.1:

(a)    the Provider gives no warranties or representations in respect of any Third Party Services; and

(b)    the Provider shall not be liable to the Customer in respect of any loss or damage that may be caused by any Third Party Services or any provider of Third Party Services.

No assignment of Intellectual Property Rights

• Nothing in this Agreement shall operate to assign or transfer any Intellectual Property Rights from the Provider to the Customer, or from the Customer to the Provider.

Representatives

• The Provider shall ensure that all instructions given by the Provider in relation to the matters contemplated in this Agreement will be given by a Provider Representative to a Customer Representative, and the Customer:

(a)    may treat all such instructions as the fully authorised instructions of the Provider; and

(b)    must not comply with any other instructions in relation to that subject matter.

• The Customer shall ensure that all instructions given by the Customer in relation to the matters contemplated in this Agreement will be given by a Customer Representative to a Provider Representative, and the Provider:

(a)    may treat all such instructions as the fully authorised instructions of the Customer; and

(b)    may decline to comply with any other instructions in relation to that subject matter.

Charges

• The Customer shall pay the Charges to the Provider in accordance with this Agreement.
• If the Charges are based in whole or part upon the time spent by the Provider performing the Services, the Provider must obtain the Customer’s written consent before performing Services that result in any estimate of time-based Charges given to the Customer being exceeded or any budget for time-based Charges agreed by the parties being exceeded; and unless the Customer agrees otherwise in writing, the Customer shall not be liable to pay to the Provider any Charges in respect of Services performed in breach of this Clause 17.2.
• All amounts stated in or in relation to this Agreement are, unless the context requires otherwise, stated exclusive of any applicable value added taxes, which will be added to those amounts and payable by the Customer to the Provider.
• The Provider may elect to vary any element of the Charges by giving to the Customer not less than 30 days’ written notice of the variation expiring on any anniversary of the date of execution of this Agreement, providing that no such variation shall result in an aggregate percentage increase in the relevant element of the Charges during the Term that exceeds 2% per annum over the percentage increase, during the same period, in the Retail Prices Index (all items) published by the UK Office for National Statistics.

Payments

20.1  The Provider shall issue invoices for the Charges to the Customer on or after the invoicing dates set out in Part 4 of Schedule 1 (Hosted Services particulars).

20.2  The Customer must pay the Charges to the Provider within the period of 30 days following the issue of an invoice in accordance with this Clause 20.

20.3  The Customer must pay the Charges by debit card, credit card, direct debit, bank transfer or cheque (using such payment details as are notified by the Provider to the Customer from time to time).

20.4  If the Customer does not pay any amount properly due to the Provider under this Agreement, the Provider may:

(a)    charge the Customer interest on the overdue amount at the rate of 10% per annum above the Bank of England base rate from time to time (which interest will accrue daily until the date of actual payment and be compounded at the end of each calendar month); or

(b)    claim interest and statutory compensation from the Customer pursuant to the Late Payment of Commercial Debts (Interest) Act 1998.

Confidentiality obligations

21.1  The Provider must:

(a)    keep the Customer Confidential Information strictly confidential;

(b)    not disclose the Customer Confidential Information to any person without the Customer’s prior written consent, and then only under conditions of confidentiality approved in writing by the Customer;

(c)    use the same degree of care to protect the confidentiality of the Customer Confidential Information as the Provider uses to protect the Provider’s own confidential information of a similar nature, being at least a reasonable degree of care; and

(d)    act in good faith at all times in relation to the Customer Confidential Information.

21.2  The Customer must:

(a)    keep the Provider Confidential Information strictly confidential;

(b)    not disclose the Provider Confidential Information to any person without the Provider’s prior written consent, and then only under conditions of confidentiality approved in writing by the Provider;

(c)    use the same degree of care to protect the confidentiality of the Provider Confidential Information as the Customer uses to protect the Customer’s own confidential information of a similar nature, being at least a reasonable degree of care; and

(d)    act in good faith at all times in relation to the Provider Confidential Information.

21.3  Notwithstanding Clauses 21.1 and 21.2, a party’s Confidential Information may be disclosed by the other party to that other party’s officers, employees, professional advisers, insurers, agents and subcontractors who have a need to access the Confidential Information that is disclosed for the performance of their work with respect to this Agreement and who are bound by a written agreement or professional obligation to protect the confidentiality of the Confidential Information that is disclosed.

21.4  No obligations are imposed by this Clause 21 with respect to a party’s Confidential Information if that Confidential Information:

(a)    is known to the other party before disclosure under this Agreement and is not subject to any other obligation of confidentiality; or

(b)    is or becomes publicly known through no act or default of the other party.

21.5  The restrictions in this Clause 21 do not apply to the extent that any Confidential Information is required to be disclosed by any law or regulation, by any judicial or governmental order or request, or pursuant to disclosure requirements relating to the listing of the stock of either party on any recognised stock exchange.

21.6  Upon the termination of this Agreement, each party must immediately cease to use the other party’s Confidential Information.

21.7  Following the termination of this Agreement, and within 5 Business Days following the date of receipt of a written request from the other party, the relevant party must destroy or return to the other party (at the other party’s option) all media containing the other party’s Confidential Information, and must irrevocably delete the other party’s Confidential Information from its computer systems.

21.8  The provisions of this Clause 21 shall continue in force indefinitely following the termination of this Agreement.

Publicity

22.1  Neither party may make any public disclosures relating to this Agreement or the subject matter of this Agreement (including disclosures in press releases, public announcements and marketing materials) without the prior written consent of the other party, such consent not to be unreasonably withheld or delayed, and providing that the following public disclosures may be made without consent: Case studies & interviews.

22.2  Nothing in this Clause 22 shall be construed as limiting the obligations of the parties under Clause 21.

Data protection

23.1  Each party shall comply with the Data Protection Laws with respect to the processing of the Customer Personal Data.

23.2  The Customer warrants to the Provider that it has the legal right to disclose all Personal Data that it does in fact disclose to the Provider under or in connection with this Agreement.

23.3  The Customer shall only supply to the Provider, and the Provider shall only process, in each case under or in relation to this Agreement, the Personal Data of data subjects falling within the categories specified in Part 1 of Schedule 7 (Data processing information) and of the types specified in Part 2 of Schedule 7 (Data processing information); and the Provider shall only process the Customer Personal Data for the purposes specified in Part 3 of Schedule 7 (Data processing information).

23.4  The Provider shall only process the Customer Personal Data during the Term and for not more than 60 days following the end of the Term, subject to the other provisions of this Clause 23.

23.5  The Provider shall only process the Customer Personal Data on the documented instructions of the Customer (including with regard to transfers of the Customer Personal Data to any place outside the European Economic Area), as set out in this Agreement or any other document agreed by the parties in writing.

23.6  The Provider shall promptly inform the Customer if, in the opinion of the Provider, an instruction of the Customer relating to the processing of the Customer Personal Data infringes the Data Protection Laws.

23.7  Notwithstanding any other provision of this Agreement, the Provider may process the Customer Personal Data if and to the extent that the Provider is required to do so by applicable law. In such a case, the Provider shall inform the Customer of the legal requirement before processing, unless that law prohibits such information on important grounds of public interest.

23.8  The Provider shall ensure that persons authorised to process the Customer Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.

23.9  The Provider and the Customer shall each implement appropriate technical and organisational measures to ensure an appropriate level of security for the Customer Personal Data, including those measures specified in Part 4 of Schedule 7 (Data processing information).

23.10 The Provider must not engage any third party to process the Customer Personal Data without the prior specific or general written authorisation of the Customer. In the case of a general written authorisation, the Provider shall inform the Customer at least 14 days in advance of any intended changes concerning the addition or replacement of any third party processor, and if the Customer objects to any such changes before their implementation, then the Provider must not implement the changes. The Provider shall ensure that each third party processor is subject to equivalent legal obligations as those imposed on the Provider by this Clause 23.

23.11 As at the Effective Date, the Provider is hereby authorised by the Customer to engage, as sub-processors with respect to Customer Personal Data, third parties within the categories identified in Part 5 of Schedule 7 (Data processing information).

23.12 The Provider shall, insofar as possible and taking into account the nature of the processing, take appropriate technical and organisational measures to assist the Customer with the fulfilment of the Customer’s obligation to respond to requests exercising a data subject’s rights under the Data Protection Laws.

23.13 The Provider shall assist the Customer in ensuring compliance with the obligations relating to the security of processing of personal data, the notification of personal data breaches to the supervisory authority, the communication of personal data breaches to the data subject, data protection impact assessments and prior consultation in relation to high-risk processing under the Data Protection Laws. The Provider shall report any Personal Data breach relating to the Customer Personal Data to the Customer within 24 hours following the Provider becoming aware of the breach.  The Provider may charge the Customer at its standard time-based charging rates for any work performed by the Provider at the request of the Customer pursuant to this Clause 23.13.

23.14 The Provider shall make available to the Customer all information necessary to demonstrate the compliance of the Provider with its obligations under this Clause 23 and the Data Protection Laws.

23.15 The Provider shall, at the choice of the Customer, delete or return all of the Customer Personal Data to the Customer after the provision of services relating to the processing, and shall delete existing copies save to the extent that applicable law requires storage of the relevant Personal Data.

23.16 The Provider shall allow for and contribute to audits, including inspections, conducted by the Customer or another auditor mandated by the Customer in respect of the compliance of the Provider’s processing of Customer Personal Data with the Data Protection Laws and this Clause 23. The Provider may charge the Customer at its standard time-based charging rates for any work performed by the Provider at the request of the Customer pursuant to this Clause 23.16.

23.17 If any changes or prospective changes to the Data Protection Laws result or will result in one or both parties not complying with the Data Protection Laws in relation to processing of Personal Data carried out under this Agreement, then the parties shall use their best endeavours promptly to agree such variations to this Agreement as may be necessary to remedy such non-compliance.

Warranties

24.1  The Provider warrants to the Customer that:

(a)    the Provider has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement;

(b)    the Provider will comply with all applicable legal and regulatory requirements applying to the exercise of the Provider’s rights and the fulfilment of the Provider’s obligations under this Agreement; and

(c)    the Provider has or has access to all necessary know-how, expertise and experience to perform its obligations under this Agreement.

24.2  The Provider warrants to the Customer that:

(a)    the Platform and Hosted Services will conform in all material respects with the Hosted Services Specification;

(b)    the Hosted Services will be free from Hosted Services Defects;

(c)    the application of Updates and Upgrades to the Platform by the Provider will not introduce any Hosted Services Defects into the Hosted Services;

(d)    the Platform will be free from viruses, worms, Trojan horses, ransomware, spyware, adware and other malicious software programs; and

(e)    the Platform will incorporate security features reflecting the requirements of good industry practice.

24.3  The Provider warrants to the Customer that the Hosted Services, when used by the Customer in accordance with this Agreement, will not breach any laws, statutes or regulations applicable under English law.

24.4  The Provider warrants to the Customer that the Hosted Services, when used by the Customer in accordance with this Agreement, will not infringe the Intellectual Property Rights of any person in any jurisdiction and under any applicable law.

24.5  If the Provider reasonably determines, or any third party alleges, that the use of the Hosted Services by the Customer in accordance with this Agreement infringes any person’s Intellectual Property Rights, the Provider may at its own cost and expense:

(a)    modify the Hosted Services in such a way that they no longer infringe the relevant Intellectual Property Rights; or

(b)    procure for the Customer the right to use the Hosted Services in accordance with this Agreement.

24.6  The Customer warrants to the Provider that it has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement.

24.7  All of the parties’ warranties and representations in respect of the subject matter of this Agreement are expressly set out in this Agreement. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of this Agreement will be implied into this Agreement or any related contract.

Acknowledgements and warranty limitations

25.1  The Customer acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of this Agreement, the Provider gives no warranty or representation that the Hosted Services will be wholly free from defects, errors and bugs.

25.2  The Customer acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of this Agreement, the Provider gives no warranty or representation that the Hosted Services will be entirely secure.

25.3  The Customer acknowledges that the Hosted Services are designed to be compatible only with that software and those systems specified as compatible in the Hosted Services Specification; and the Provider does not warrant or represent that the Hosted Services will be compatible with any other software or systems.

25.4  The Customer acknowledges that the Provider will not provide any legal, financial, accountancy or taxation advice under this Agreement or in relation to the Hosted Services; and, except to the extent expressly provided otherwise in this Agreement, the Provider does not warrant or represent that the Hosted Services or the use of the Hosted Services by the Customer will not give rise to any legal liability on the part of the Customer or any other person.

Indemnities

26.1  The Provider shall indemnify and shall keep indemnified the Customer against any and all liabilities, damages, losses, costs and expenses (including legal expenses and amounts reasonably paid in settlement of legal claims) suffered or incurred by the Customer and arising directly or indirectly as a result of any breach by the Provider of this Agreement (a “Provider Indemnity Event“).

26.2  The Customer must:

(a)    upon becoming aware of an actual or potential Provider Indemnity Event, notify the Provider;

(b)    provide to the Provider all such assistance as may be reasonably requested by the Provider in relation to the Provider Indemnity Event;

(c)    allow the Provider the exclusive conduct of all disputes, proceedings, negotiations and settlements with third parties relating to the Provider Indemnity Event; and

(d)    not admit liability to any third party in connection with the Provider Indemnity Event or settle any disputes or proceedings involving a third party and relating to the Provider Indemnity Event without the prior written consent of the Provider,

and the Provider’s obligation to indemnify the Customer under Clause 26.1 shall not apply unless the Customer complies with the requirements of this Clause 26.2.

26.3  The Customer shall indemnify and shall keep indemnified the Provider against any and all liabilities, damages, losses, costs and expenses (including legal expenses and amounts reasonably paid in settlement of legal claims) suffered or incurred by the Provider and arising directly or indirectly as a result of any breach by the Customer of this Agreement (a “Customer Indemnity Event“).

26.4  The Provider must:

(a)    upon becoming aware of an actual or potential Customer Indemnity Event, notify the Customer;

(b)    provide to the Customer all such assistance as may be reasonably requested by the Customer in relation to the Customer Indemnity Event;

(c)    allow the Customer the exclusive conduct of all disputes, proceedings, negotiations and settlements with third parties relating to the Customer Indemnity Event; and

(d)    not admit liability to any third party in connection with the Customer Indemnity Event or settle any disputes or proceedings involving a third party and relating to the Customer Indemnity Event without the prior written consent of the Customer,

and the Customer’s obligation to indemnify the Provider under Clause 26.3 shall not apply unless the Provider complies with the requirements of this Clause 26.4.

26.5  The indemnity protection set out in this Clause 26 shall be subject to the limitations and exclusions of liability set out in this Agreement.

Limitations and exclusions of liability

27.1  Nothing in this Agreement will:

(a)    limit or exclude any liability for death or personal injury resulting from negligence;

(b)    limit or exclude any liability for fraud or fraudulent misrepresentation;

(c)    limit any liabilities in any way that is not permitted under applicable law; or

(d)    exclude any liabilities that may not be excluded under applicable law.

27.2  The limitations and exclusions of liability set out in this Clause 27 and elsewhere in this Agreement:

(a)    are subject to Clause 27.1; and

(b)    govern all liabilities arising under this Agreement or relating to the subject matter of this Agreement, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in this Agreement.

27.3  Neither party shall be liable to the other party in respect of any losses arising out of a Force Majeure Event.

27.4  Neither party shall be liable to the other party in respect of any loss of profits or anticipated savings.

27.5  Neither party shall be liable to the other party in respect of any loss of revenue or income.

27.6  Neither party shall be liable to the other party in respect of any loss of use or production.

27.7  Neither party shall be liable to the other party in respect of any loss of business, contracts or opportunities.

27.8  Neither party shall be liable to the other party in respect of any loss or corruption of any data, database or software; providing that this Clause 27.8 shall not protect the Provider unless the Provider has fully complied with its obligations under Clause 11.3 and Clause 11.4.

27.9  Neither party shall be liable to the other party in respect of any special, indirect or consequential loss or damage.

27.10 The liability of each party to the other party under this Agreement in respect of any event or series of related events shall not exceed the greater of:

(a)    £250,000; and

(b)    the total amount paid and payable by the Customer to the Provider under this Agreement in the 12 month period preceding the commencement of the event or events.

27.11 The aggregate liability of each party to the other party under this Agreement shall not exceed the greater of:

(a)    £1,000,000; and

(b)    the total amount paid and payable by the Customer to the Provider under this Agreement.

Force Majeure Event

28.1  If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under this Agreement (other than any obligation to make a payment), that obligation will be suspended for the duration of the Force Majeure Event.

28.2  A party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in that party performing any obligation under this Agreement, must:

(a)    promptly notify the other; and

(b)    inform the other of the period for which it is estimated that such failure or delay will continue.

28.3  A party whose performance of its obligations under this Agreement is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event.

Termination

29.1  Either party may terminate this Agreement by giving to the other party not less than 30 days’ written notice of termination, expiring after the end of the Minimum Term.  Following the minimum term, either party may terminate this Agreement under the same terms stated above, in line with the break clauses expressed in Clause 29.6.

29.2  Either party may terminate this Agreement immediately by giving written notice of termination to the other party if:

(a)    the other party commits any breach of this Agreement, and the breach is not remediable;

(b)    the other party commits a breach of this Agreement, and the breach is remediable but the other party fails to remedy the breach within the period of 30 days following the giving of a written notice to the other party requiring the breach to be remedied; or

(c)    the other party persistently breaches this Agreement (irrespective of whether such breaches collectively constitute a material breach).

29.3  Either party may terminate this Agreement immediately by giving written notice of termination to the other party if:

(a)    the other party:

(i)     is dissolved;

(ii)    ceases to conduct all (or substantially all) of its business;

(iii)    is or becomes unable to pay its debts as they fall due;

(iv)   is or becomes insolvent or is declared insolvent; or

(v)    convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;

(b)    an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party; or

(c)    an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under this Agreement).

29.4  The Provider may terminate this Agreement immediately by giving written notice to the Customer if:

(a)    any amount due to be paid by the Customer to the Provider under this Agreement is unpaid by the due date and remains unpaid upon the date that that written notice of termination is given; and

(b)    the Provider has given to the Customer at least 30 days’ written notice, following the failure to pay, of its intention to terminate this Agreement in accordance with this Clause 29.4.

29.5  The rights of termination set out in this Agreement shall not exclude any rights of termination available at law.

29.6  The Customer may terminate this Agreement after the minimum term, under the following conditions:(a) Break clause 1: The minimum term has been fulfilled, and within a two week period, the Customer has given       written notice to the Provider.  A penalty will be applied, equivalent to the discounts applied within this period, inclusive of any project cost discounts and ongoing cost discounts.(a) Break clause 2: A 3 year term has been fulfilled, and within a two week period, the Customer has given written notice to the Provider.  A penalty will be applied, equivalent to the discounts applied within this period, inclusive of any ongoing cost discounts.

Effects of termination

30.1  Upon the termination of this Agreement, all of the provisions of this Agreement shall cease to have effect, save that the following provisions of this Agreement shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): Clauses 1, 4.8, 5.10, 12.11, 18.2, 18.3, 19, 20.2, 20.4, 21, 22, 23.1, 23.3, 23.4, 23.5, 23.6, 23.7, 23.8, 23.9, 23.10, 23.11, 23.12, 23.13, 23.14, 23.15, 23.16, 23.17, 26, 27, 30, 31, 33, 34, 35, 36, 37, 38, 39 and 40.

30.2  Except to the extent that this Agreement expressly provides otherwise, the termination of this Agreement shall not affect the accrued rights of either party.

30.3  Within 30 days following the termination of this Agreement for any reason:

(a)    the Customer must pay to the Provider any Charges in respect of Services provided to the Customer before the termination of this Agreement; and

(b)    the Provider must refund to the Customer any Charges paid by the Customer to the Provider in respect of Services that were to be provided to the Customer after the termination of this Agreement,

without prejudice to the parties’ other legal rights.

Non-solicitation of personnel

31.1  The Customer must not, without the prior written consent of the Provider, either during the Term or within the period of 6 months following the end of the Term, engage, employ or solicit for engagement or employment any employee or subcontractor of the Provider who has been involved in any way in the negotiation or performance of this Agreement.

31.2  The Provider must not, without the prior written consent of the Customer, either during the Term or within the period of 6 months following the end of the Term, engage, employ or solicit for engagement or employment any employee or subcontractor of the Customer who has been involved in any way in the negotiation or performance of this Agreement.

Notices

32.1  Any notice given under this Agreement must be in writing, whether or not described as “written notice” in this Agreement.

32.2  Any notice given by the Customer to the Provider under this Agreement must be:

(a)    sent by recorded signed-for post;

(b)    sent by email; or

(c)    submitted using the Provider’s online contractual notification facility,

using the relevant contact details set out in Part 6 of Schedule 1 (Hosted Services particulars).

32.3  Any notice given by the Provider to the Customer under this Agreement must be:

(a)    sent by recorded signed-for post;

(b)    sent by email; or

(c)    submitted using the Customer’s online contractual notification facility,

using the relevant contact details set out in Part 6 of Schedule 1 (Hosted Services particulars).

32.4  The addressee and contact details set out in Part 6 of Schedule 1 (Hosted Services particulars) may be updated from time to time by a party giving written notice of the update to the other party in accordance with this Clause 32.

32.5  A party receiving from the other party a notice by email must acknowledge receipt by email promptly, and in any event within 2 Business Days following receipt of the notice.

32.6  A notice will be deemed to have been received at the relevant time set out below or, where such time is not within Business Hours, when Business Hours next begin after the relevant time set out below:

(a)    in the case of notices sent by post, 48 hours after posting;

(b)    in the case of notices sent by email, at the time of the sending of an acknowledgement of receipt by the receiving party; and

(c)    in the case of notices submitted using an online contractual notification facility, upon the submission of the notice form.

Assignment

33.1  The Provider must not assign, transfer or otherwise deal with the Provider’s contractual rights and/or obligations under this Agreement without the prior written consent of the Customer, such consent not to be unreasonably withheld or delayed, providing that the Provider may assign the entirety of its rights and obligations under this Agreement to any Affiliate of the Provider or to any successor to all or a substantial part of the business of the Provider from time to time.

33.2  The Customer must not assign, transfer or otherwise deal with the Customer’s contractual rights and/or obligations under this Agreement without the prior written consent of the Provider, such consent not to be unreasonably withheld or delayed, providing that the Customer may assign the entirety of its rights and obligations under this Agreement to any Affiliate of the Customer or to any successor to all or a substantial part of the business of the Customer from time to time.

No waivers

34.1  No breach of any provision of this Agreement will be waived except with the express written consent of the party not in breach.

34.2  No waiver of any breach of any provision of this Agreement shall be construed as a further or continuing waiver of any other breach of that provision or any breach of any other provision of this Agreement.

Severability

35.1  If a provision of this Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions will continue in effect.

35.2  If any unlawful and/or unenforceable provision of this Agreement would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect.

36.    Third party rights

36.1  This Agreement is for the benefit of the parties, and is not intended to benefit or be enforceable by any third party.

36.2  The exercise of the parties’ rights under this Agreement is not subject to the consent of any third party.

37.    Variation
37.1   This Agreement may not be varied except by means of a written document signed by or on behalf of each party, without prejudice to the requirements of Clause