SalesSystemCRM Agreement

Last updated 24th June 2009.

Copyright © 2017. Zootle Limited - 43 Campden Street, London, W8 7ET, UK. All rights reserved.

This SalesSystemCRM Agreement ("the Agreement") is a legal agreement between you ("the Customer") and ZOOTLE LTD with registered office at 43 Campden Street, London, W8 7ET, UK and registered number 06680943 ("the Supplier") for the purposes of sales, marketing and support systems, that are instantly accessible and easy to use, and delivered as an application hosted over the web.

IF YOU PURCHASE OUR SERVICES, THIS AGREEMENT WILL ALSO GOVERN YOUR PURCHASE AND ONGOING USE OF THOSE SERVICES.

BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM "THE CUSTOMER" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SOFTWARE OR HOSTING SERVICES, MAINTENANCE AND SUPPORT.

Background

(A) The Supplier has developed and provides a service consisting of internet access to application software at its remote computer location for the purpose of SalesSystemCRM.

(B) The Customer wishes to use the Supplier's service in its business operations.

(C) The Supplier has agreed to provide and the Customer has agreed to take and pay for the Supplier's service subject to the terms and conditions of this Agreement.

Agreed terms

  1. Interpretation
    1. The definitions and rules of interpretation in this clause apply in this Agreement.

      Authorised Users: those employees and independent contractors of the Customer who are entitled to use the Software through the Hosting Services under this Agreement as agreed between the parties.

      Change of Control: the direct or indirect acquisition of either the majority of the voting stock, or of all, or substantially all, of the assets, of a party by another entity in a single transaction or a series of transactions.

      Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 8.5 ("CONFIDENTIALITY").

      Customer Data: the data inputted into the information fields of the Software by the Customer, by Authorised Users, or by the Supplier on the Customer's behalf.

      Free Period: the thirty (30) day free trial for all Software and Hosting Services as detailed in clause 6.1 ("CHARGES AND PAYMENT") below.

      Hosting Services: the services that the Supplier provides to allow Authorised Users to access and use the Software, including hosting set-up and ongoing services, as described in Schedule 1 ("HOSTING SERVICES").

      Initial Term: the initial period during which you are obligated to pay for the Software and Services equal to the monthly, quarterly or annual billing frequency selected by you during the subscription process.

      Maintenance and Support: any error corrections, updates and upgrades that the Supplier may provide or perform with respect to the Software and Hosting Services, as well as any other support or training services provided to the Customer under this Agreement, all as described in Schedule 3 ("MAINTENANCE AND SUPPORT").

      Services: the Hosting Services and/or Maintenance and Support as applicable, given the context in which the term the Services is used.

      Software: the Supplier's proprietary software in code form only as described in Schedule 2 ("SOFTWARE"), including any error corrections, updates, upgrades, modifications and enhancements to it provided to the Customer under this Agreement.

      Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.

    2. Clause, schedule and paragraph headings shall not affect the interpretation of this Agreement.
    3. A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person's legal and personal representatives, successors or permitted assigns.
    4. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
    5. Words in the singular shall include the plural and vice versa.
    6. A reference to one gender shall include a reference to the other genders.
    7. A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
    8. A reference to writing or written includes faxes but not e-mail.
    9. References to clauses and schedules are to the clauses and schedules of this Agreement; references to paragraphs are to paragraphs of the relevant schedule to this Agreement.
  2. Hosting Services, Maintenance and Support
    1. The Supplier shall perform the Hosting Services and Maintenance and Support.
    2. In relation to Authorised Users:

      (a) the Customer's access to the Hosting Services shall be limited to the Authorised Users, being employees or independent contractors of the Customer;

      (b) the Customer shall maintain a written list of current Authorised Users of the Software, and the Customer shall provide such list to the Supplier as may be reasonably requested by the Supplier from time to time;

      (c) the Customer shall ensure that each Authorised User keeps a secure password for his or her use of the Software, that such password is changed no less frequently than MONTHLY and that each Authorised User keeps his password confidential;

      (d) the Supplier may audit the Software regarding the name and password for each Authorised User. Such audit may be conducted no more than once per quarter, at the Supplier's expense, and shall be exercised with reasonable prior notice, in a manner so as to not substantially interfere with Customer's normal conduct of business; and

      (e) if such audit reveals that passwords have been provided to individuals who are not Authorised Users, and without prejudice to the Supplier's other rights, the Customer shall promptly disable such passwords and shall not issue any new passwords to such individuals; however

      (f) though the secure password cannot be shared or used by more than one individual Authorised User the Supplier may at its sole discretion reassign the secure password from time to time to new Authorised Users who are replacing former Authorised Users who have terminated employment or otherwise changed job status or function and no longer use the Software and the Services.

    3. In relation to the Software:

      (a) the Supplier hereby grants to the Customer on and subject to the terms and conditions of this Agreement a non-exclusive, non-transferable licence to allow Authorised Users to access the Software through the Hosting Services and to use the Software solely for the Customer's business purposes;

      (b) the Customer shall not store, distribute or transmit any Viruses, or any material through the Hosting Services that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; facilitates illegal activity; depicts sexually explicit images; or promotes unlawful violence, discrimination based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activities;

      (c) the rights provided under this clause 2.3 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer;

      (d) the Customer shall not:

      (i) attempt to copy, duplicate, modify, create derivative works from or distribute all or any portion of the Software except to the extent expressly set out in this Agreement or as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties; or

      (ii) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software, except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties; or

      (iii) access all or any part of the Software or Hosting Services in order to build a product or service which competes with the Software and/or the Services

      (iv) use the Software or Hosting Services to provide services to third parties; or

      (v) subject to clause 16.1 ("ASSIGNMENT"), transfer, temporarily or permanently, any of its rights under this Agreement, or

      (vi) attempt to obtain, or assist third parties in obtaining, access to the Software, other than as provided under this clause 2.3(d); and

      (e) the Customer shall use reasonable endeavours to prevent any authorised access to, or use of, the Software and notify the Supplier promptly of any such unauthorised access or use.

  3. Customer Data
    1. The Customer shall own all rights, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.
    2. The Supplier shall follow its archiving procedures for Customer Data as described in Schedule 1 ("HOSTING SERVICES"). In the event of any loss or damage to Customer Data, the Customer's sole and exclusive remedy shall be for the Supplier to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by the Supplier in accordance with the archiving procedure described in Schedule 1 ("HOSTING SERVICES"). The Supplier shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by the Supplier to perform services related to Customer Data maintenance and back-up).
    3. If the Supplier processes any personal data on the Customer's behalf when performing its obligations under this Agreement, the parties record their intention that the Customer shall be the data controller and the Supplier shall be a data processor and in any such case:

      (a) the Customer shall ensure that the Customer is entitled to transfer the relevant personal data to the Supplier so that the Supplier may lawfully process the personal data in accordance with this Agreement on the Customer's behalf;

      (b) the Supplier shall process the personal data only in accordance with the terms of this Agreement and any lawful instructions reasonably given by the Customer from time to time; and

      (c) each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.

  4. Supplier's obligations
    1. The Supplier undertakes that the Services will be performed substantially in accordance with the Software specification and with reasonable skill and care.
    2. The undertaking at clause 4.1 above shall not apply to the extent of any non-conformance which is caused by use of the Software contrary to the Supplier's instructions or modification or alteration of the Software by any party other than the Supplier or the Supplier's duly authorised contractors or agents. If the Software does not conform with the foregoing warranty, the Supplier will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly. Such correction or substitution constitutes the Customer's sole and exclusive remedy for any breach of the undertaking set out in clause 4.1 above. Notwithstanding the foregoing, Supplier does not warrant that the Customer's use of the Software and the Services will be uninterrupted or error-free.
    3. This Agreement shall not prevent the Supplier from entering into similar agreements with third parties, or from independently developing, using, selling or licensing materials, products or services which are similar to those provided under this Agreement.
  5. Customer's obligations

    The Customer shall:

    (a) provide the Supplier with:

    (i) all necessary co-operation in relation to this Agreement; and

    (ii) all necessary access to such information as may be required by the Supplier;

    in order to render the Services, including but not limited to Customer Data, security access information and software interfaces to the Customer's other business applications;

    (b) provide such personnel assistance, including contact details and other Customer personnel details, as may be reasonably requested by the Supplier from time to time. The Supplier shall use reasonable endeavours to ensure continuity of its personnel assigned to this Agreement;

    (c) appoint the Customer's project manager, who shall have the authority to contractually bind the Customer on all matters relating to this Agreement. The Customer shall use reasonable endeavours to ensure continuity of the Customer's project manager;

    (d) comply with all applicable laws and regulations with respect to its activities under this Agreement; and

    (e) carry out all other Customer responsibilities set out in this Agreement or in any of the Schedules in a timely and efficient manner. In the event of any delays in the Customer's provision of such assistance as agreed by the parties, the Supplier may adjust any timetable or delivery schedule set out in this Agreement as reasonably necessary.

  6. Charges and payment
    1. The Supplier offers the Customer a thirty (30) day free trial for the Software and Hosting Services ("the Free Period"). For the avoidance of doubt the Free Period does not include Maintenance and Support.
    2. When the Free Period expires, the Customer will be charged in advance in accordance with the then-current monthly, quarterly and annual payment terms http://www.salessystemcrm.com/pricing/ that are requested by the Customer.
    3. The Customer shall pay all fees or charges in accordance with the then-current monthly, quarterly or annual payment terms http://www.salessystemcrm.com/pricing/ in effect at the time the fee or charge is due and payable.
    4. All payment obligations are non-cancellable and all amounts paid are non-refundable. The Customer is responsible for all fees or charges in connection with the use of the Software and Services on the Customer's account(s) for the entire payment term, whether or not Software and Services are actively used.
    5. After the Free Period the Customer will receive periodic invoices based on the Customer's agreed monthly, quarterly or annual payment terms which sum up their recurring charges and fees.
    6. The Customer shall reimburse the Supplier for all actual, reasonable travel expenses including, but not limited to, airfare, hotel and meals incurred by the Supplier in performance of the Services.
    7. All charges and fees stated or referred to in this Agreement are exclusive of value added tax, which shall be added to the Supplier's invoice(s) at the appropriate rate.
    8. The Supplier may charge interest on any overdue charges or fees payable from the due date until payment of all sums owing including interest, and without prejudice to any other rights and remedies of the Supplier:

      (a) the Supplier shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and

      (b) interest shall accrue on such due amounts at an annual rate equal to four per cent (4%) over the then current base lending rate of Lloyds TSB Plc at the date the relevant invoice was issued, commencing on the due date and continuing until fully paid, whether before or after judgment.

    9. The Supplier may update the payment terms http://www.salessystemcrm.com/pricing/ periodically and may change the fees or charges at any time by giving a thirty (30) day notice of such change on the Supplier's website http://www.salessystemcrm.com/pricing/, by email, mail or by some other means, before any such change to the charges takes effect. If the Customer does not accept the changes the Customer can cancel this Agreement as set out in below in Clause 11 ("TERM AND TERMINATION"). Any continued use of the Software or Services by the Customer will be deemed acceptance by the Customer of the relevant change.
    10. The Customer shall have the ability to create and grant access to additional individual Authorised Users. The Customer shall be charged by the Supplier in accordance with the payment terms http://www.salessystemcrm.com/pricing/.
    11. Any additional Authorised Users requested by the Customer shall be requested in writing. The Supplier shall evaluate such requests and respond to the Customer with approval or disapproval of the request, together with a quote for any additional set-up or ongoing costs to the Customer for creating and granting access to such additional Authorised Users. On Customer acceptance of such approval and quotation, the Supplier shall provide access based on a mutually agreeable schedule.
    12. For the avoidance of doubt the Authorised User(s) charges and fees are based on the payment terms that begin on the Initial Term start date and each anniversary thereof; therefore, charges and fees for Authorised User(s) subscriptions added in the middle of a systems payment term will be charged for that full monthly, quarterly or annual period.
  7. Proprietary rights
    1. The Customer acknowledges and agrees that the Supplier and/or its licensors own all intellectual property rights in the Software and the Services. Except as expressly stated herein, this Agreement does not grant the Customer any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Software, Services or any related documentation.
    2. The Supplier confirms that it has all the rights in relation to the Software that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement.
  8. Confidentiality
    1. Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Agreement. A party's Confidential Information shall not be deemed to include information that:

      (a) is or becomes publicly known other than through any act or omission of the receiving party; or

      (b) was in the other party's lawful possession before the disclosure; or

      (c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or

      (d) is independently developed by the receiving party, which independent development can be shown by written evidence; or

      (e) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.

    2. Each party shall hold the other's Confidential Information in confidence and, unless required by law, not make the other's Confidential Information available to any third party, or use the other's Confidential Information for any purpose other than the implementation of this Agreement.
    3. Each party shall take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.
    4. Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
    5. The Customer acknowledges that the Software, the results of any performance tests of the Software and the Services constitute the Supplier's Confidential Information.
    6. The Supplier acknowledges that the Customer Data is the Confidential Information of the Customer.
    7. This clause 8 shall survive termination of this Agreement, however arising.
  9. Indemnity
    1. The Customer shall defend, indemnify and hold harmless the Supplier against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer's use of the Software or Services, or the Customer Data, provided that:

      (a) the Customer is given prompt notice of any such claim;

      (b) the Supplier provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer's expense; and

      (c) the Customer is given sole authority to defend or settle the claim.

    2. The Supplier shall defend the Customer, its officers, directors and employees against any claim that the Software infringes any United Kingdom patent effective as of this Agreement, copyright, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:

      (a) the Supplier is given prompt notice of any such claim;

      (b) the Customer provides reasonable co-operation to the Supplier in the defence and settlement of such claim, at the Supplier's expense; and

      (c) the Supplier is given sole authority to defend or settle the claim.

    3. In the defence or settlement of the claim, the Supplier may: (i) obtain for the Customer the right to continue using the Software; and / or (ii) replace or modify the Software so that it becomes non-infringing; or if such remedies are not reasonably available, terminate this Agreement without liability to the Customer. The Supplier shall have no liability if the alleged infringement is based on:

      (a) a modification of the Software by anyone other than the Supplier; or

      (b) the Customer's use of the Software in a manner contrary to the instructions given to the Customer by the Supplier; or

      (c) the Customer's use of the Software after notice of the alleged or actual infringement from the Supplier or any appropriate authority.

    4. The foregoing states the Customer's sole and exclusive rights and remedies, and the Supplier's entire obligations and liability, for patent, copyright, database or right of confidentiality infringement.
  10. Limitation of liability
    1. This clause 10 sets out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of:

      (a) any breach of this Agreement;

      (b) any use made by the Customer of the Services and the Software or any part of them; and

      (c) any representation, statement or tortuous act or omission (including negligence) arising under or in connection with this Agreement.

    2. Except as expressly and specifically provided in this Agreement:

      (a) the Customer assumes sole responsibility for results obtained from the use of the Software and the Services by the Customer, and for conclusions drawn from such use. The Supplier shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Supplier by the Customer in connection with the Services, or any actions taken by the Supplier at the Customer's direction; and

      (b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement.

    3. Nothing in this Agreement excludes the liability of the Supplier:

      (a) for death or personal injury caused by the Supplier's negligence; or

      (b) for fraud or fraudulent misrepresentation.

    4. Subject to clause 10.3 above:

      (a) the Supplier shall not be liable for any delays, delivery failures, or other damage relating to the Software and the Services which results from the limitations, delays and other problems inherent in the use of the Internet and electronic communications.

      (b) the Supplier shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss costs, damages, charges or expenses however arising under this Agreement; and

      (c) the Supplier's total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to the price paid for the Services during the monthly, quarterly or annual payment term preceding the date on which the claim arose.

  11. TERM AND Termination
    1. The Supplier will provide you with your requested Software and Services from the date on which the Customer CLICKS A BOX INDICATING ITS ACCEPTANCE OR EXECUTES AN ORDER FORM THAT REFERENCES THIS AGREEMENT as detailed above.
    2. The Initial Term shall be as the Customer has selected during the subscription process or as otherwise mutually agreed upon between the parties, commencing on the date the Customer agrees to pay for the Software and the Service by completing subscription form or otherwise.
    3. Upon the expiration of the Initial Term, this Agreement will automatically renew for successive renewal terms equal in duration to the Initial Term at the Supplier's then current fees http://www.salessystemcrm.com/pricing/.
    4. Either party may terminate this Agreement, effective only upon the expiration of the then current payment term (i.e. monthly, quarterly or annually), by notifying the other party in writing at least five (5) business days prior to the date of the invoice for the following payment term. To discontinue the Software and the Services, email sales@zootle.co.uk .
    5. In the case of Free Period for the Software and Hosting Services, notifications provided from the Supplier indicating the remaining number of days in the Free Period shall also constitute notice of termination.
    6. For the avoidance of doubt the Supplier may terminate a Free Period for Software and Hosting Services at any time at its sole discretion. 11.7The Supplier may terminate this Agreement without liability to the Customer if:

      (a) the Customer commits a material breach of any of the terms of this Agreement (material breach shall include but not be limited to late payment and misuse of the Software or Services) and (if such a breach is remediable) fails to remedy that breach within thirty (30) days of the Customer being notified in writing of the breach; or

      (b) an order is made or a resolution is passed for the winding up of the Customer, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order in relation to the Customer; or

      (c) an order is made for the appointment of an administrator to manage the affairs, business and property of the Customer, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the Customer, or notice of intention to appoint an administrator is given by the other party or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986); or

      (d) a receiver is appointed of any of the other Customer's assets or undertaking, or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the Customer, or if any other person takes possession of or sells the other party's assets; or

      (e) the Customer makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way; or

      (f) the Customer ceases, or threatens to cease, to trade; or

      (g) there is a change of control of the Customer within the meaning of section 840 of the Income and Corporation Taxes Act 1988; or

      (h) the other party takes or suffers any similar or analogous action in any jurisdiction in consequence of debt.

    7. On termination of this Agreement for any reason:

      (a) all licences granted under this Agreement shall immediately terminate;

      (b) each party shall return and make no further use of any equipment, property, materials and other items (and all copies of them) belonging to the other party;

      (c) the Supplier may destroy or otherwise dispose of any of the Customer Data in its possession unless the Supplier receives, no later than ten (10) days after the effective date of the termination of this Agreement, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. The Supplier shall use reasonable commercial endeavours to deliver the back-up to the Customer within thirty (30) days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by the Supplier in returning or disposing of Customer Data; and

      (d) the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.

  12. Force majeure

    The Supplier shall have no liability to the Customer under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Customer is notified of such an event and its expected duration.

  13. Waiver
    1. A waiver of any right under this Agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given.
    2. Unless specifically provided otherwise, rights arising under this Agreement are cumulative and do not exclude rights provided by law.
  14. Severance
    1. If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
    2. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
  15. Entire agreement
    1. This Agreement, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.
    2. Each of the parties acknowledges and agrees that in entering into this Agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this Agreement or not) relating to the subject matter of this Agreement, other than as expressly set out in this Agreement.
  16. Assignment
    1. The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
    2. The Supplier may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
  17. No partnership or agency

    Nothing in this Agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

  18. Third party rights

    This Agreement does not confer any rights on any person or party (other than the parties to this Agreement and (where applicable) their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.

  19. Notices
    1. Any notice required to be given under this Agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in this Agreement, or such other address as may have been notified by that party for such purposes, or sent by fax to the other party's fax number as set out in this Agreement.
    2. A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by fax shall be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender).
  20. Governing law and jurisdiction
    1. This Agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by, and construed in accordance with, the laws of England and Wales.
    2. The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).

Schedule 1 - HOSTING SERVICES

  1. Hosting set-up

    The set-up phase of the Hosting Services includes those services provided by the Supplier or its contracted third parties to design, install, configure and test the Hosting Services, as well as the hosting facility and internet connectivity.

  2. Installation and configuration

    The Supplier shall procure, install and configure the hosting equipment to provide access to the Software.

  3. Facility

    The hosting equipment shall be installed in a rack-mounted configuration inside a professional hosting facility designed for such use. The facility shall be equipped with access security, climate control, fire suppression, and managed power supply with UPS and generator back-up.

  4. Internet connectivity
    1. The Supplier shall provide internet connectivity through an internet service provider at the hosting facility. The connectivity shall include multiple, diversely routed high-speed connections and a firewall. The Customer shall, and shall ensure that its Authorised Users shall, make their own arrangements for internet access in order to access the Software.
    2. The Supplier shall supply burstable bandwidth connectivity services. The connectivity shall include multiple connections and a network operations centre that monitors servers, the network platform and internet access.
  5. Continuing Hosting Services

    The continuing Hosting Services provided by the Supplier or its contracted third parties, which allow for availability of the Software, include internet connectivity (as detailed in paragraph 4 above, security services, monitoring, back-up, release management and change control, and administration services.

  6. Security services

    The Supplier shall provide security services as follows:

    (a) facility access shall be limited to the authorised Supplier and contracted third-party personnel;

    (b) the facility shall be monitored twenty four (24) hours a day, seven (7) days a week through closed circuit video surveillance and shall require identification for access; and

    (c) data access security shall be provided through managed firewall services with security on all web pages.

  7. Back-up, archiving and recovery services

    The Supplier shall have a back-up schedule, perform scheduled back-ups, provide routine and emergency data recovery, and manage the archiving process. The back-up schedule shall include at least daily back-ups. In the event of data loss, the Supplier shall provide recovery services to try to restore the most recent back-up.

Schedule 2 - SOFTWARE

The Software is an application that enables invoicing and stock management via the internet details of which are available at http://www.salessystemcrm.com/.

Schedule 3 - MAINTENANCE AND SUPPORT

  1. Training
    1. The Supplier can provide training to the Authorised Users.
  2. Maintenance Events
    1. Maintenance of the hosting equipment, facility, Software or other aspects of the Hosting Services that may require interruption of the Hosting Services ("Maintenance Events") shall not be performed during normal business hours. The Supplier may interrupt the Services to perform emergency maintenance on prior written notice to the Customer by e-mail. In addition, the Supplier may interrupt the Hosting Services outside normal business hours for unscheduled maintenance, provided that it has given the Customer advance notice. Any Maintenance Events which occur during normal business hours, and which were not requested by the Customer, shall be considered downtime for the purpose of service availability measurement. The Supplier shall at all times endeavour to keep any service interruptions to a minimum.
    2. The Supplier may determine, at its sole discretion, that providing appropriate service requires additional equipment and/or bandwidth, and may install that equipment and/or bandwidth without approval from the Customer. The Supplier may increase the corresponding Hosting Services fees (only), as specified in clause 6 ("CHARGES AND PAYMENTS").
  3. Maintenance
    1. Maintenance includes all regularly scheduled error corrections, software updates and those upgrades limited to improvements to features described in the Software specification detailed at Schedule 2 ("SOFTWARE"). Support for additional features developed by the Supplier, as requested by the Customer, may be purchased separately at the Supplier's then current rates.
    2. The Supplier shall maintain and update the Software. Should the Customer determine that the Software includes a defect, the Customer may at any time file error reports. During maintenance periods, the Supplier may, at its discretion, upgrade versions, install error corrections and apply patches to the hosted systems. The Supplier shall use all reasonable endeavours to avoid unscheduled downtime for Software maintenance.
    3. The Supplier shall maintain technical support on the most current release of the Software.
  4. Technical support services
    1. The Supplier shall provide the Customer with technical support services where opted for and paid for by the Customer. The Customer's project manager shall be authorised to contact the Supplier for technical support services. The Supplier shall provide technical support services only to that specified Customer's project manager.
    2. The Supplier shall issue customer identification number (CIN) to the Customer's project manager, which will allow the Customer's project manager to access Supplier technical support. Supplier technical support shall accept voicemail, e-mail and web form-based incident submittal from Customer's project manager twenty four (24) hours a day, seven (7) days a week (subject to any unforeseen hardware failures). The Supplier technical support call centre shall accept calls for English language telephone support during normal business hours within business days. The Supplier shall use reasonable endeavours to process support requests, issue trouble ticket tracking numbers if necessary, determine the source of the problem and respond to the Customer. The Supplier technical support call line shall respond to all support requests from the Customer's project manager with a valid CIN according to priority.
    3. The Supplier shall provide monitoring of its Hosting Services as described in Schedule 1 ("HOSTING SERVICES"). The Supplier shall directly notify the Customer's project manager of Maintenance Events (as defined in paragraph 2.1 above) that may affect the availability of the Hosting Services.
    4. The Customer shall provide front-line support to Authorised Users who are not the designated Customer's project manager, however, the Customer's designated Customer's project manager must contact Supplier technical support in order to report problems from Authorised Users that the Customer's designated Customer's project manager cannot resolve themselves after they have performed a reasonable level of diagnosis.