PARTIES

Caneline Limited, a company incorporated in England and Wales (registration number 1558277) having its registered office at 82 High Street South, Dunstable LU6 3HD (the “Provider”) and you, or, if you represent an entity or other organization, that entity or organisation (in either the “Customer”).

BACKGROUND

1. The Provider undertakes to provide a helpline service to investigate and correct defects arising from the use of the Supported Software on the terms set out in this Software Support Agreement.

2. The Customer will have access to the support services required.

3. The Provider and the Customer therefore wish to enter into a contract in accordance with the provisions of this Agreement.

AGREEMENT

1. Definitions

1.1 Except to the extent expressly provided otherwise, in this Agreement:

“Affiliate” means an entity that Controls, is Controlled by, or is under common Control with the relevant entity;

“Agreement” means this agreement including any Schedules, and any amendments to this Agreement from time to time;

“Business Day” means any weekday other than a bank or public holiday in England;

“Business Hours” means the hours of 09:00 to 17:30 GMT/BST on a Business Day;

“CCN” means a change control notice issued in accordance with Clause 9;

“CCN Consideration Period” means the period of 10 Business Days following the receipt by a party of the relevant CCN from the other party;

“Change” means any change to the scope of the Services

“Charges” means the following amounts:

(a) the amounts specified in Paragraph 4 of Schedule 1 (Software Particulars – if included in these terms) ;

(b) such amounts as may be agreed in writing by the parties from time to time; and

(c) amounts calculated by multiplying the Provider’s standard time-based charging rates (as notified by the Provider to the Customer before the date of this Agreement and as updated by the Provider from time to time) by the time spent by the Provider’s personnel performing the Services;

(d) the amounts agreed to by the Customer on the Provider’s website.

“Control” means the legal power to control (directly or indirectly) the management of an entity (and “Controlled” should be construed accordingly);

“Controller” has the meaning given to it under the Data Protection Legislation;

“Customer Confidential Information” means:

(a) any information disclosed by or on behalf of the Customer to the Provider at any time before the termination of this Agreement (whether disclosed in writing, orally or otherwise) that at the time of disclosure was marked as “confidential” or should have been understood by the Provider (acting reasonably) to be confidential; and

(b) the terms of this Agreement;

“Customer Indemnity Event” has the meaning given to it in Clause 19.3;

“Customer Representatives” means the person or persons identified as such in Paragraph 5 of Schedule 1 (Software Particulars), and any additional or replacement persons that may be appointed by the Customer giving to the Provider written notice of the appointment;

“Customer Systems” means the computer and networking hardware and software systems of the Customer that will or may interact with the Software;

“Data Protection Legislation” means the UK Data Protection Legislation and (for so long as and to the extent that the law of the European Union has legal effect in the UK) the General Data Protection Regulation ((EU) 2016/679) and any other directly applicable European Union regulation relating to privacy;

“Data Subject” has the meaning given to it under the Data Protection Legislation;

“Effective Date” means the date of execution of this Agreement. If you are signing up online, then it will be the date of your sign-up;

“Expenses” means the travel, accommodation and subsistence expenses that are reasonably necessary for, and incurred by the Provider exclusively in connection with, the performance of the Provider’s obligations under this Agreement;

“Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);

“Free Customer” means that the “Customer” does not pay for any service from the “Provider”.

“Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these “intellectual property rights” include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);

“Minimum Term” means, in respect of this Agreement, the period of 0 months beginning on the Effective Date;

“Permitted Purpose” means to ensure required support or work required can be performed;

“Personal Data” has the meaning given to it under the Data Protection Legislation;

“Processor” has the meaning given to it under the Data Protection Legislation;

“Provider Confidential Information” means:

(a) any information disclosed by or on behalf of the Provider to the Customer at any time before the termination of this Agreement (whether disclosed in writing, orally or otherwise) that at the time of disclosure was marked as “confidential” or should have been understood by the Customer (acting reasonably) to be confidential; and

(b) the terms of this Agreement;

“Provider Indemnity Event” has the meaning given to it in Clause 19.1;

“Provider Representatives” means the person or persons identified as such in Paragraph 5 of Schedule 1 (Software Particulars), and any additional or replacement persons that may be appointed by the Provider;

“Schedule” means any schedule attached to the main body of this Agreement;

“Services” means any services that the Provider provides to the Customer, or has an obligation to provide to the Customer, under this Agreement;

“Software” means the software identified in Paragraph 1 of Schedule 1 (Software Particulars);

“Support Services” means support in relation to the use of the Software and the identification and resolution of errors in the Software, but shall not include the provision of training services whether in relation to the Software or otherwise; and

“Term” means the term of this Agreement, commencing in accordance with Clause 2.1 and ending in accordance with Clause 22.

“UK Data Protection Legislation” means any data protection legislation from time to time in force in the UK, including the Data Protection Act 2018 or any successor legislation;

“Workaround” means a temporary solution implemented at the Customer site.

“Maintenance Release” means a standard software update by the Provider.

“Excluded Equipment” means hardware and ancillary equipment not covered by this agreement.

2. Term

2.1 This Agreement shall come into force upon the Effective Date.

2.2 This Agreement shall continue in force indefinitely, subject to termination in accordance with Clause 22 or any other provision of this Agreement.

3. Support Services

3.1 The Provider shall provide the Support Services to the Customer during the Term.

3.2 The Provider shall provide the Support Services with reasonable skill and care.

3.3 The Provider shall provide the Support Services in accordance with Schedule 2 (Support SLA).

3.4 The Provider may suspend the provision of the Support 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 Support Services on this basis.

4. Customer obligations

4.1 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

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

4.2 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.

5. Customer Systems

5.1 The Customer shall ensure that the Customer Systems comply, and continue to comply during the Term, with the requirements of Paragraph 2 of Schedule 1 (Software Particulars) subject to any changes agreed in writing by the Provider.

6. No assignment of Intellectual Property Rights

6.1 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.

7. Representatives

7.1 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) May decline to comply with any other instructions in relation to that subject matter.

7.2 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.

8. Management

8.1 The parties have no obligation tohold management meetings at each party’s offices, by telephone conference or using internet-based conferencing facilities.

9. Change control

9.1 The provisions of this Clause 9 apply to each Change requested by a party.

9.2 Either party may request a Change at any time.

10. Charges

10.1 The Customer shall pay the Charges to the Provider in accordance with this Agreement.

10.2 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 10.2.

10.3 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.

10.4 The Charges will be reviewed for each Year by the Provider. The Provider shall provide notice to the Customer of any proposed increase in the Charges not less than 30 days before the anniversary of this agreement.

10.5 The Installation of additional software, additions and/ or modifications to the existing Supported Software as at the date of this Software Support Agreement and requests for additional user licences will result in an increase in the Annual Fee set out in Paragraph 4 of Schedule 1 (Software Particulars).

10.6 If the Customer fails to pay an invoice for services provided under this Software Support Agreement within the agreed payment terms set out in Section 13 of this agreement then the Provider reserves the right (acting reasonably) to suspend all services until payment is received.

10.7 If the action needed to rectify an issue includes a visit to the Customer’s premises, then the Customer’s shall pay the Provider’s charges and expenses calculated in accordance with the Provider’s rates set out in Paragraph 4 of Schedule 1 (Software Particulars) and Schedule 5 (Implementation Outline).

10.8 If the Customer requires additional services (for example the addition or relocation of equipment) and the Provider agrees to the request then the Customer agrees to pay for these services at the Provider’s rates set out in Paragraph 4 of Schedule 1 (Software Particulars) and Schedule 5 (Implementation Outline).

11. Expenses

11.1 The Customer shall reimburse the Provider in respect of any Expenses providing that the Provider obtains the prior written authorisation of the Customer before incurring any Expenses.

11.2 The Provider must collect and collate evidence of all Expenses and must retain such evidence during the Term and for a period of 90 days following payment of the invoice.

11.3 Within 10 Business Days following receipt of a written request from the Customer to do so the Provider must supply to the Customer such copies of the evidence for the Expenses in the possession or control of the Provider as the Customer may specify in that written request.

12. Timesheets

12.1 The Provider will:

(a) ensure that the personnel providing Services, the Charges for which will be based in whole or part upon the time spent in the performance of those Services, complete records of their time spent providing those Services; and

(b) retain such records during and for a period of at least 12 months following payment of the invoice.

12.2 Within 10 Business Days following receipt of a written request, the Provider shall supply to the Customer copies of such of the timesheets referred to in Clause 12.1 and in the Provider’s possession or control as the Customer may specify in that written request.

13. Payments

13.1 The Provider shall issue invoices for the Charges to the Customer in accordance with amounts confirmed by the Customer on the Provider’s website.

13.2 The Provider shall raise invoices in respect of the Annual Fee quarterly in advance five to six weeks in advance of the commencement of the relevant quarter.

13.3 The Customer must pay the Annual Fee quarterly in advance before the commencement of the relevant period.

13.4 The Provider Shall raise invoices in respect to the Additional Fees from time to time.

13.5 The Customer must pay the Charges in Clause 13.4 to the Provider within the period of 30 days following the issue of an invoice in accordance with this Clause 13.

13.3 The Customer must pay the Charges by bank transfer (using such payment details as are notified by the Provider to the Customer from time to time).

13.4 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 8% 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.

14. Provider’s confidentiality obligations

14.1 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;

(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;

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

14.2 Notwithstanding Clause 14.1, the Provider may disclose the Customer Confidential Information to the Provider’s officers, employees, professional advisers, insurers, agents and subcontractors who are bound by a written agreement or professional obligation to protect the confidentiality of the Customer Confidential Information.

14.3 This Clause 14 imposes no obligations upon the Provider with respect to Customer Confidential Information that:

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

(b) is or becomes publicly known through no act or default of the Provider; or

(c) is obtained by the Provider from a third party in circumstances where the Provider has no reason to believe that there has been a breach of an obligation of confidentiality.

14.4 The restrictions in this Clause 14 do not apply to the extent that any Customer 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 the Provider on any recognised stock exchange.

14.5 Upon the termination of this Agreement the Provider must immediately cease to use the Customer Confidential Information.

14.6 Following the termination of this Agreement and within a reasonable timeframe following the date of receipt of a written request from the Customer the Provider must destroy or return to the Customer (at the Customer’s option) all media containing Customer Confidential Information, and must irrevocably delete the Customer Confidential Information from its computer systems.

14.7 The provisions of this Clause 14 shall continue in force for a period of 5 years following the termination of this Agreement at the end of which period they will cease to have effect.

15. Customer’s confidentiality obligations

15.1 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;

(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;

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

15.2 Notwithstanding Clause 15.1, the Customer may disclose the Provider Confidential Information to the Customer’s officers, employees, professional advisers, insurers, agents and subcontractors who are bound by a written agreement or professional obligation to protect the confidentiality of the Provider Confidential Information.

15.3 This Clause 15 imposes no obligations upon the Customer with respect to Provider Confidential Information that:

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

(b) is or becomes publicly known through no act or default of the Customer; or

(c) is obtained by the Customer from a third party in circumstances where the Customer has no reason to believe that there has been a breach of an obligation of confidentiality.

15.4 The restrictions in this Clause 15 do not apply to the extent that any Provider 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 the Customer on any recognised stock exchange.

15.5 Upon the termination of this Agreement, the Customer must immediately cease to use the Provider Confidential Information.

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

15.7 The provisions of this Clause 15 shall continue in force for a period of 5 years following the termination of this Agreement, at the end of which period they will cease to have effect.

16. Publicity

16.1 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.

16.2 Nothing in this Clause 16 shall be construed as limiting the obligations of the parties under Clause 14 or 15.

17. Data protection

17.1 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, and that the processing of that Personal Data by the Provider for the Permitted Purpose in accordance with this Agreement will not breach any Data Protection Legislation.

17.2 The Provider and the Customer will comply with all applicable requirements of the Data Protection Legislation. This clause 17.2 is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation.

17.3 The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the Controller and the Provider is the Processor.

17.4 Schedule 4, which is incorporated into this agreement, sets out a list of the scope, nature and purpose of processing by the Provider, the duration of the processing and the types of Personal Data and categories of Data Subject in relation to the Provider providing the Services under this Agreement.

17.5 Without prejudice to the generality of clause 17.2, the Customer will ensure that it has all the necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to the Provider and for the purpose of this Agreement.

17.6 The Provider shall, in relation to any Personal Data processed in connection with providing the Services under this Agreement for the Customer:

(a) process that Personal Data only on the written instructions of the Customer unless the Provider is required by the laws of any member of the European Union or by the laws of the European Union applicable to the Provider to process Personal Data (Applicable Laws). Where the Provider is relying on laws of a member of the European Union or European Union law as the basis for processing Personal Data, the Provider shall promptly notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Provider from so notifying the Customer;

(b) ensure that it has in place appropriate technical and organisational measures, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures;

(c) ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and

(d) not transfer any Personal Data outside of the European Economic Area unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled:

the Controller or the Processor has provided appropriate safeguards in relation to the transfer;

the Data Subject has enforceable rights and effective legal remedies;

the Provider complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and

the Provider complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Personal Data;

(e) assist the Customer at the Customer’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;

(f) notify the Customer within 48 hours on becoming aware of a Personal Data breach;

(g) at the written direction and expense of the Customer, delete or return Personal Data and copies thereof to the Customer unless required by Applicable Law to store the Personal Data; and

(h) maintain complete and accurate records and information to demonstrate its compliance with this Clause 17 and as required under the Data Protection Legislation and allow for audits by the Customer or the Customer’s designated auditor where applicable.

17.7 The Provider can only appoint a third party processor or subcontractor under the following two conditions:

(a) the Provider has obtained the Customer’s general written authorisation; and

(b) the contract entered into between the Provider and the subcontractor is on terms which are substantially the same as those set out in this clause 17.

17.8 For the purpose of clause 17.7 the Customer confirms that:

(a) it consents to the Provider using subcontractors; and

(b) it consents to the Provider using such subcontractors as are required in order for it to provide the services under the Agreement, subject to the Provider’s internal vetting procedure.

The Provider will be liable for all conduct of its subcontractors related with the Service provided to the Customer.

17.8 For the avoidance of doubt, the Customer acknowledges that for the purpose of the Provider calculating its charges under the Agreement it will need to have access to Personal Data for the purpose of checking the value of business being carried out by the Customer. The Customer consents to this to the extent that this may be required under the Data Protection Legislation.

18. Warranties

18.1 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.

18.2 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.

18.3 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.

19 Proprietary rights

19.1 Except as expressly permitted under the Agreement and any associated User Licences the Customer may not use, copy (except for back-up purposes) or modify the System in any way whatsoever without the prior written authorisation of the Provider.

19.2 The Supported Software shall remain the sole property of the Provider. The Customer shall not assert any right, title or interest in the Supported Software except for the right to use the Software under an operative User Licence.

20. Limitations and exclusions of liability

20.1 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;

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

20.2 The limitations and exclusions of liability set out in this Clause 20 and elsewhere in this Agreement:

(a) are subject to Clause 20.1; 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.

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

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

20.5 Provider shall not be liable to the Customer in respect of any loss of revenue or income.

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

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

20.8 Neither party shall be liable to the other party in respect of any loss or corruption of any data, database or software.

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

20.10 The liability of the provider shall not exceed any amounts paid by the Customer to the provider under the Software Support Agreement in the twelve months prior to the Customer’s written notification of a claim.

20.11 No action, regardless of form, arising out of this Software Support Agreement may be brought by the Customer more than one year after the cause of the action has arisen.

20.12 These exclusions and limitations of the liability of both parties shall also apply to any of its employees and agents and these exclusions shall survive any termination of this Software Support Agreement.

21. Force Majeure Event

21.1 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.

21.2 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.

21.3 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.

22. Termination

22.1 Either party may terminate this Agreement by giving to the other party not less than twelve months notice after the end of the Minimum Term.

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

(a) the other party commits any material breach of this Agreement;

(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).

22.3 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;

(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); or

(d) if that other party is an individual:

(i) that other party dies;

(ii) as a result of illness or incapacity, that other party becomes incapable of managing his or her own affairs; or

(iii) that other party is the subject of a bankruptcy petition or order.

22.4 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 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 22.4.

23. Effects of termination

23.1 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, 11.2, 11.3, 12, 13.2, 13.4, 14, 15, 16, 19, 20, 23, 24, 27, 28, 29, 30, 31, 32, 33 and 34.

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

23.3 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.

23.4 On termination of this Software Support Agreement howsoever terminated the associated User Licences shall also terminate.

24. Non-solicitation of personnel

24.1 The Customer must not, without the prior written consent of the Provider, either during the Term or within the period of 12 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.

24.2 The Provider must not, without the prior written consent of the Customer, either during the Term or within the period of 12 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.

25. Notices

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

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

(a) delivered personally;

(b) sent by courier;

(d) sent by fax; or

(e) sent by email;

using the relevant contact details set out in Clause 25.4.

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

(a) delivered personally;

(b) sent by courier;

(d) sent by fax; or

(e) sent by email;

using the relevant contact details set out in Clause 25.4.

25.4 The parties’ contact details for notices under this Clause 25 are as follows:

(a) in the case of notices sent by the Customer to the Provider:

Postal Address: The Directors, Caneline Limited, 82 High Street South, Dunstable LU6 3HD

Email: help@support.talisman.tech; and

(b) in the case of notices sent by the Provider to the Customer, {{email_address}}.

25.5 The addressee and contact details set out in Clause 25.4 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 25.

25.6 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.

25.7 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 delivered personally upon delivery;

(b) in the case of notices sent by courier upon delivery;

(d) in the case of notices sent by fax at the time of the transmission of the fax (providing the sending party retains written evidence of the transmission); and

(e) in the case of notices sent by email at the time of the sending of the email (providing that the sending party retains written evidence that the email has been sent);

26. Subcontracting

26.1 The Provider may subcontract any of its obligations under this Agreement.

26.2 The Provider shall remain responsible to the Customer for the performance of any subcontracted obligations.

27. Assignment

27.1 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.

27.2 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.

28. No waivers

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

28.2 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.

29. Severability

29.1 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.

29.2 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.

30. Third party rights

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

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

31. Variation

31.1 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 9.

32. Entire agreement

32.1 The main body of this Agreement and the Schedules shall constitute the entire agreement between the parties in relation to the subject matter of this Agreement and shall supersede all previous agreements arrangements and understandings between the parties in respect of that subject matter.

32.2 Neither party will have any remedy in respect of any misrepresentation (whether written or oral) made to it upon which it relied in entering into this Agreement.

32.3 The provisions of this Clause 32 are subject to Clause 20.1.

33. Law and jurisdiction

33.1 This Agreement shall be governed by and construed in accordance with English law.

33.2 Any disputes relating to this Agreement shall be subject to the exclusive jurisdiction of the courts of England.

34. Interpretation

34.1 In this Agreement, a reference to a statute or statutory provision includes a reference to:

(a) that statute or statutory provision as modified consolidated and/or re-enacted from time to time; and

(b) any subordinate legislation made under that statute or statutory provision.

34.2 The Clause headings do not affect the interpretation of this Agreement.

34.3 References in this Agreement to “calendar months” are to the 12 named periods (January, February and so on) into which a year is divided.

34.4 In this Agreement general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts matters or things.

SCHEDULE 1 (SOFTWARE PARTICULARS)

1. Identification of Software

The Talisman software ordered by the Customer online will be stored on the Customer’s record automatically. Any upgrades requested will be stored on the Customer record and can be requested from the Provider at any time.

2. Customer Systems

Hosted on Talisman Cloud Server

3. Implementation Fees

As per agreed either by the Customer on the Provider’s website, or in a written agreement between the Provider and the Customer.

4. Additional Fee Charts

4.1 Reasonable usage is expected. If it is deemed that the customer has exceeded Reasonable Usage, charges will apply;

4.2 The decision on whether a Customer has exceeded reasonable usage is wholly at the discretion of the Provider;

4.3 The Provider reserves the right to charge:

£0.05 per Outgoing SMS
£0.015 per Incoming SMS
£5 per 1,000 Outgoing Emails
£5 per 1,000 Geolocation requests

5. Representatives

The Provider Representatives are: Support Team on help@support.talisman.tech.

The Customer Representatives will be taken from the account creation process entered by the Customer on the Provider’s website.

SCHEDULE 2 (SUPPORT SLA)

1. Introduction

1.1 This Schedule 2 sets out the service levels applicable to the Support Services.

2. Helpdesk

2.1 The Provider shall make available to the Customer a helpdesk in accordance with the provisions of this Schedule 2.

2.2 The Customer may use the helpdesk for the purposes of requesting and, where applicable, receiving the Support Services; and the Customer must not use the helpdesk for any other purpose.

2.3 The Provider shall ensure that the helpdesk is accessible by telephone, email and using the Provider’s web-based ticketing system.

2.4 The Provider shall ensure that the helpdesk is operational and adequately staffed during Business Hours during the Term.

2.5 The Customer shall ensure that all requests for Support Services that it may make from time to time shall be made through the helpdesk.

2.6 The Customer shall supply details of the issue in writing with any reasonable information to aid the diagnosis if requested.

2.7 The Customer and the Provider will verify the issue by ensuring that it is capable of being reproduced.

3. Response and resolution

3.1 Issues raised through the Support Services shall be categorised as follows:

Priority A

Complete System or critical feature down or unusable including but not limited to Timesheet Entry, Payroll Processing, creation of BACS files, Invoice creation and issue.

Priority B:

One or more System facilities unusable.

Priority C:

System facility works but with restrictions or errors impacting on other parts of the System.

Priority D:

System facility restriction or error which does not impact on other parts of the System.

Priority E:

Cosmetic error.

3.2 The Provider shall determine, acting reasonably, into which severity category an issue falls.

3.3 The Provider shall use reasonable endeavours to respond to requests for Support Services promptly, and in any case in accordance with the following time periods:

(a) Priority A: 1 Business Hour;

(b) Priority B: 2 Business Hours;

(d) Priority D: 3 Business Days; and

(e) Priority E: 1 Calendar Month;

3.4 The Provider shall ensure that its response to a request for Support Services shall include the following information (to the extent such information is relevant to the request): an acknowledgement of receipt of the request, where practicable an initial diagnosis in relation to any reported error, and an anticipated timetable for action in relation to the request.

3.5 Subject to Clause 2.7, the Provider shall use reasonable endeavours to resolve issues raised through the Support Services promptly, and in any case in accordance with the following time periods:

(a) Priority A: 8 Business Hours to a Workaround, 3 Business Days to fix;

(b) Priority B: 2 Business Days to a Workaround, 9 Business Days to fix;

(d) Priority D: 6 Business Days to a Workaround, Next Maintenance Release to fix; and

(e) Priority E: No commitment to resolve;

3.6 If the “Customer” is a “Free Customer” then they are not entitled to the SLA’s listed in this Schedule.

4. Provision of Support Services

4.1 The Support Services shall be provided remotely, save to the extent that the parties agree otherwise in writing.

5. Limitations on Support Services

5.1 If the total hours spent by the personnel of the Provider performing the Support Services during any calendar month exceeds 20 then:

(a) the Provider will cease to have an obligation to provide Support Services to the Customer during the remainder of that period; and

(b) the Provider may agree to provide Support Services to the Customer during the remainder of that period, but the provision of those Support Services will be subject to additional Charges.

5.2 The Provider shall have no obligation to provide Support Services in respect of any issue caused by:

(a) any factor outside the scope of the Support Services;

(b) the improper use of the Software by the Customer; or

5.3 If the Provider provides Support Services at the request of the Customer and the Provider, after beginning the provision of those Support Services, reasonably concludes that the Provider has no obligation to provide those Support Services by virtue of the exceptions set out in Paragraph 5.2, the Provider may levy additional Charges in respect of:

(a) those Support Services; or

(b) any subsequent Support Services provided in relation to the issue with the consent of the Customer,

at its standard time-based rates.

6. Customer Responsibilities

6.1 The Customer shall operate the System with due diligence and in accordance with instructions issued by The Provider.

6.2 The Customer shall arrange a maintenance contract with a reputable supplier for maintenance of the Hardware and Operating Software.

6.3 The Customer shall ensure the Customer Representative is competent in the operation of the Supported Software.

6.4 The Customer shall appoint a systems administrator who is competent to act as a central liaison for all issues relating to the System. This may or may not be the Customer Representative.

6.5 The Customer shall, at its own expense, provide suitable telephone network communications equipment as specified by the Provider with the express purpose of the Provider effecting remote access to the System.

6.6 The Customer shall allow the Provider or its duly authorised agents full access on request to the Supported Software at the facility as described in in Clause 6.5.

6.7 The Customer shall allow the Provider or duly authorised agents access by prior arrangement during normal office hours to enter the Customer’s premises for the purposes of providing Software Support Services and to ensure that the Supported Software is readily accessible to the Provider or agents for such purposes.

6.8 The Customer shall provide a suitable place of work for the Provider as required at its premises together with free use of telephone for use in connection with the Software Support Services provided under this Software Support Agreement.

6.9 The Customer shall use best endeavours to ensure that issues reported to the Provider are not such as might be resolved by the Customer by reference to the Documentation.

6.10 The Customer shall promptly notify the Provider of any Defect and assist the Provider in supplying all necessary data and information for the review and analysis of any Defect. Failure by the Customer so to notify The Provider within 30 days of the Customer first becoming aware of a Defect or the incorrect working of the System shall free the Provider of its obligations concerning target response times set out in Paragraph 3

6.11 The Customer shall keep security copies of the current version of the Supported Software and of the Customer’s data and computer records in accordance with best computing practice.

6.12 The Customer shall update promptly all copies of the Documentation relating to the Supported Software in accordance with the Provider’s instructions.

7. Training

7.1 The Customer shall use best endeavours to ensure that users of the Supported and Operating Software are competent to operate the System

7.2 The Provider will advise the Customer in writing of any specific training required to use a particular part of the Supported Software and such training will be undertaken at the Customer’s expense.

7.3 The Provider will be entitled to cease support of such part of the Supported Software if the Customer fails to complete training within 90 days of notification.

7.4 The Provider will supply relevant chargeable training to all parts of the Supported Software on request.

8. Emergency Support

8.1 The support to be provided pursuant to this Software Support Agreement is available within the Support Hours. Any services required outside of the Support Hours must be pre-arranged and will be charged at the Provider’s Emergency Support Rate.

9. New releases

9.1 The Provider may from time to time make available new releases of the Supported Software incorporating modifications and improvements (“New Releases”) and shall advise the Customer of their availability. If requested, the Provider shall supply New Releases to the Customer together with any related documentation and if requested to do so shall install it on the Hardware.

10.2 The Provider will support the latest and the immediately preceding release of the Supported Software as well as earlier releases subject to the provisions of Clause 10.3.

10.3 Should the Provider withdraw support of a release (other than the latest and immediately preceding release) of the Supported Software, it will provide the Customer with six months written notification of its intention.

10.4 Should the Customer then not install a currently supported release within six months of such written notification by the Provider, the Provider reserves the right to withdraw the provision of Software Support Services in respect of the Supported Software in question.

10.5 If the Provider chooses to continue the provision of support in respect of a release which has become unsupported, the Provider reserves the right to increase the Annual Fees to reflect the additional time and expense incurred.

10.6 New releases of the same version of the Supported Software will be made available free of charge to the Customer. The Customer agrees to pay The Provider for implementation at the Provider’s prevailing rates and shall reimburse the Provider for expenses incurred. A quotation will be provided before any chargeable implementation work is carried out.

11. Services not covered by this Software Support Agreement

11.1 Software Support Services do not include the following services which may at the Provider’s sole discretion be provided if requested and charged in accordance with The Provider’s prevailing rates:

11.1.1 Support or maintenance of any software not supplied by the Provider;

11.1.2 Software Support Services relating to an issue which was not reported to The Provider in accordance with time limits set out in Clause 6.10;

11.1.3 Rectification of lost or corrupted data;

11.1.4 Amending or modifying the Supported Software to ensure that the Supported Software conforms to any change of legislation or new legal requirement which affects the application of any function or facility of the Supported Software; or

11.1.5 The failure of the System caused by:

(a) Excluded Equipment.

(b) any software not covered by this Agreement.

(d) the fault or negligence of the Customer.

(e) unauthorised alteration of the Supported Software.

(f) deliberate or malicious operator error.

(g) the failure or incorrect use of the Hardware.

(h) use that is inconsistent with the reasonable directions of The Provider.

11.2 The Provider shall be under no obligation to provide the Software Support Services if the User Licence is terminated or the Customer is in breach of the terms and conditions of the User Licence.

SCHEDULE 4 (Personal Data)

1. Subject matter, nature and purpose of processing

All matters which are necessary for the provision of the Services by the Provider to the Customer.

2. Duration

For the term of the Agreement.

3. Types of Personal Data

All Personal Data held on the Customer’s systems which the Provider will have access to by reason of providing the Services.

4. Categories of Data Subject

All categories of Data Subject about whom the Customer holds Personal Data on its systems and which the Provider will have access to by reason of providing Services.

Terms and Conditions