Terms & Conditions

APPLICATION SERVICE PROVISION AGREEMENT

THIS AGREEMENT – PARTIES

1. Booking On The Net is the trading name for Time Management Solutions Ltd. Time Management Solutions Ltd incorporated and registered in England and Wales with company number 7007128 whose registered office is 4 Ashton Close, Northwich, Cheshire, CW9 8WS. 2. You, the Client or the Customer.

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 assisting in the provision of business management. (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

1.1 The definitions and rules of interpretation in this clause apply in this agreement. Authorised Users: those employees and clients of the Customer who are entitled to use the Software through the Hosting Services under this agreement, as further described in clause 3.2a. Customer Authorised User: An Authorised User granted owner access to the Software. Business Day: any day which is not a Saturday, Sunday or public holiday in England. 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 10.5. Configuration Services: the configuration and related work referred to in clause and schedule 3, to be performed by the Supplier to configure the Software so that the Software conforms with the Software Specification. Customer Account Holder: the individuals appointed by the Customer from time to time who shall serve as the Supplier’s primary contacts for the Supplier’s activities under this agreement. The initial members of the Supplier Account Team are listed in schedule 2. 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. Deliverable: a defined level of functionality or other pre-set milestone within a particular phase of the Configuration Services, to be more particularly described in the Project Plan. Effective date: the date you agreed to this agreement whether that be by tick box or signature. Fees: the fees payable to the Supplier, as described in schedule 1. 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 4. 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 6. Normal Business Hours: 9.00 am to 5.00 pm local UK time, each Business Day. Project Plan: the plan to be developed in the planning stage of the Configuration Services. Service Level Arrangements: the service level arrangements set out in Schedule 7. Services: the Configuration Services, Hosting Services and/or Maintenance and Support as applicable, given the context in which the term Services is used. Software: the Supplier’s proprietary software in machine-readable object code form only as described in Schedule 5, including any error corrections, updates, upgrades, modifications and enhancements to it provided to the Customer under this agreement. Software Specification: the functionality and performance specifications for the Software, as set out in Schedule 5. Supplier’s Project Manager: the member of the Supplier’s staff appointed in accordance with clause 2.1. The Supplier’s Project Manager at the Effective Date is named in Schedule 2. 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.

1.2 Clause, schedule and paragraph headings shall not affect the interpretation of this agreement.

1.3 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].

1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

1.5 Words in the singular shall include the plural and vice versa.

1.6 A reference to one gender shall include a reference to the other genders.

1.7 A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.

1.8 A reference to writing or written includes faxes but not e-mail.

1.9 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. CONFIGURATION SERVICES

2.1 The Supplier shall appoint the Supplier’s Project Manager, who shall have the authority to contractually bind the Supplier on all matters relating to this agreement. The Supplier shall use reasonable endeavours to ensure continuity of the Supplier’s Project Manager, but has the right to replace him or her from time to time where reasonably necessary in the interests of the Supplier’s business.

2.2 On delivery of each Deliverable, the Customer shall be able to access the Deliverable online. Within ten days of the Supplier’s delivery to the Customer of any Deliverable, the Customer shall review the Deliverable to confirm that it functions in material conformance with the applicable portion of the Software Specification. If the Deliverable fails in any material respect to conform with the applicable portion of the Software Specification, the Customer shall give the Supplier a detailed description of any such non-conformance (Error), in writing, within the five-day review period.

2.3 With respect to any Errors contained in any Deliverables delivered to the Customer during the Configuration Services, the Supplier shall use reasonable endeavours to correct any such Error within a reasonable time and, on completion, submit the corrected Deliverable to the Customer. The provisions of this clause 2.3 shall then apply again, up to three additional times. If the Supplier is unable to correct such Error after three attempts, either party may terminate this agreement without further liability to the other party.

2.4 If the Customer does not provide any written comments in the five-day period described above, or if the Deliverable is found to conform with the Software Specification, the Deliverable shall be deemed accepted.

3. HOSTING SERVICES, MAINTENANCE AND SUPPORT

3.1 The Supplier shall perform the Hosting Services and Maintenance and Support services.  The Service Level Arrangements shall apply with effect from the start of the month after the Configuration Services have been satisfactorily completed.

3.2 In relation to Authorised Users: (a) the Customer shall maintain a 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; (b) the Customer shall ensure that each Authorised User keeps a secure password for his use of the Software, and that each Authorised User keeps his password confidential; (c) 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 (d) 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.

3.3 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 3.3 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 18.1, 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 d; and (e) the Customer shall use reasonable endeavours to prevent any unauthorised access to, or use of, the Software and notify the Supplier promptly of any such unauthorised access or use.

4. CUSTOMER DATA

4.1 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.

4.2 The Supplier shall follow its archiving procedures for Customer Data as described Schedule 4.  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 4. 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).

4.3 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.

5. SUPPLIER’S OBLIGATIONS

5.1 The Supplier undertakes that the Services will be performed substantially in accordance with the Software Specification and with reasonable skill and care.

5.2 The undertaking at clause 5.1 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, Supplier will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking set out in clause 5.1.  Notwithstanding the foregoing, Supplier does not warrant that the Customer’s use of the Software and the Services will be uninterrupted or error-free.

5.3 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.

6. 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; (b)

provide such personnel assistance, as may be reasonably requested by the Supplier from time to time.  The Supplier Account Team shall consist of the personnel listed in Schedule 2. The Supplier shall use reasonable endeavours to ensure continuity of its personnel assigned to this agreement; (c) comply with all applicable laws and regulations with respect to its activities under this Agreement.

7. CHARGES AND PAYMENT

7.1 The Customer shall pay the amounts set out in Schedule 1 for the Configuration Services.

7.2 The Customer shall pay the monthly Software licence and Maintenance and Support fees set out in Schedule 1 for use and maintenance and support of the Software.

7.3 The Customer shall pay the initial set-up services fee and monthly fees, as set out in Schedule 1, for the Hosting Services. The Hosting set-up fee specified in paragraph 4 of Schedule 1 shall be paid one month from the Effective Date.

7.4 All amounts and fees stated or referred to in this agreement are exclusive of value added tax.

7.5 The Supplier shall invoice the Customer monthly as of the last day of each month for all Services performed by the Supplier during that month. Each invoice is due and payable 30 days after the invoice date. If the Supplier has not received payment within five days after the due date, 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 3% over the then current base lending rate of HSBC at the date the relevant invoice was issued, commencing on the due date and continuing until fully paid, whether before or after judgment.

8. CHANGE CONTROL

8.1 If either party wishes to change the scope of the Services (including Customer requests for additional hosting services), it shall submit details of the requested change to the other in writing.

8.2 If either party requests a change to the scope or execution of the Services, the Supplier shall, within a reasonable time, provide a written estimate to the Customer of: (a) the likely time required to implement the change; (b) any variations to the Fees arising from the change; (c) the likely effect of the change on the Project Plan; and (d) any other impact of the change on the terms of this agreement.

8.3 If the Supplier requests a change to the scope of the Services, the Customer shall not unreasonably withhold or delay consent to it.

8.4 If the Customer wishes the Supplier to proceed with the change, the Supplier has no obligation to do so unless and until the parties have agreed in writing the necessary variations to its charges, the Project Plan and any other relevant terms of this agreement to take account of the change.

9. PROPRIETARY RIGHTS

9.1 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.

9.2 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.

10. CONFIDENTIALITY

10.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this agreement.  A party’s Confidential Information shall not be deemed to include information that:  (a) is or becomes publicly known other than through any act or omission of the receiving party; 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.

10.2 Each party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of this agreement.

10.3 Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this agreement.

10.4 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.

10.5 The Customer acknowledges that the Software, the results of any performance tests of the Software and the Services constitute the Supplier’s Confidential Information.

10.6 The Supplier acknowledges that the Customer Data is the Confidential Information of the Customer.

10.7 This clause 10 shall survive termination of this agreement, however arising.

11. INDEMNITY

11.1 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, 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.

11.2 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 the Effective Date, copyright, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:  (a) the Supplier is given prompt notice of any such claim;  (b) the Customer provides reasonable co-operation to the Supplier in the defence and settlement of such claim, at the Supplier’s expense; and  (c) the Supplier is given sole authority to defend or settle the claim.

11.3 In the defence or settlement of the claim, the Supplier may obtain for the Customer the right to continue using the Software, 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.

11.4 The foregoing states the Customer’s sole and exclusive rights and remedies, and the Supplier’s entire obligations and liability, for patent, copyright, database or right of confidentiality infringement.

12. LIMITATION OF LIABILITY

12.1 This clause 12 sets out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of: (a) any breach of this agreement;  (b) any use made by the Customer of the Services, the Software, the Deliverables or any part of them; and  (c) any representation, statement or tortious act or omission (including negligence) arising under or in connection with this agreement.

12.2 Except as expressly and specifically provided in this agreement: (a) the Customer assumes sole responsibility for results obtained from the use of the Software and 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.

12.3 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.

12.4 The Service Level Arrangements state the Customer’s full and exclusive right and remedy, and the Supplier’s only obligation and liability in respect of, the performance and/or availability of the Service, or their non-performance and non-availability.

12.5 Subject to clause 12.3 and clause 12.4: (a) 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 (b) the Supplier’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement shall be limited to the price paid for the Services during the 12 months preceding the date on which the claim arose.

13. TERM AND TERMINATION

13.1 This agreement shall commence on the date of the first site registration and shall continue for the period of 30 calendar days, unless otherwise terminated as provided in this clause 13. After 30 days, this agreement shall automatically renew for monthly periods, unless either party notifies the other, in writing, at least 30 days before the end of the then current term.

13.2 Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate this agreement without liability to the other if: (a) the other party commits a material breach of any of the terms of this agreement and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or (b) an order is made or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order in relation to the other party; or (c) an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the other party, or notice of intention to appoint an administrator is given by the other party or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986); or (d) a receiver is appointed of any of the other party’s assets or undertaking, or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other party, or if any other person takes possession of or sells the other party’s assets; or (e) the other party makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way; or (f) the other party ceases, or threatens to cease, to trade; or (g) there is a change of control of the other party 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. (g) During the first 28 days after first site registration the customer wishes to discontinue with the service.

13.3 On termination of this agreement for any reason: (a) all licences granted under this agreement shall immediately terminate; (b) each party shall return and make no further use of any 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 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 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.

14. FORCE MAJEURE

The Supplier shall have no liability to the Customer under this agreement if it is prevented from or delayed in performing its obligations under this agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport 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.

15. WAIVER

15.1 A waiver of any right under this agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given.

15.2 Unless specifically provided otherwise, rights arising under this agreement are cumulative and do not exclude rights provided by law.

16. SEVERANCE

16.1 If any provision (or part of a provision) of this agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.

16.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.

17. ENTIRE AGREEMENT

17.1 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.

17.2 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.

18. ASSIGNMENT

18.1 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.

18.2 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.

19. 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).

20. 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.

21. NOTICES

21.1 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 or emailed 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, as set out in this agreement.

21.2 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 email shall be deemed to have been received at the time of transmission.

22 GOVERNING LAW AND JURISDICTION

22.1 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 law of England.

22.2 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).

This agreement has been entered into on the date stated at the beginning of it.

Schedule 1 Fees

1. CONFIGURATION SERVICE FEES

1.1 Configuration Services will not be charged.  The configuration services include a free trial period of 28 days after first site registration.

2. MONTHLY SOFTWARE LICENCE AND MAINTENANCE/SUPPORT FEE

The monthly fee is the fee that is agreed upon between us and you, the Customer.

3. PRICE CHANGES

Price changes will be notified in excess of 30 days prior to changes taking effect.

SCHEDULE 2 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. INTERNET CONNECTIVITY

The Supplier shall provide internet connectivity through an internet service provider at the hosting facility. The Customer shall, and shall ensure that its Authorised Users shall, make their own arrangements for internet access in order to access the Software.

3. 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 2 above, load distribution management, security services, monitoring, back-up, release management and change control, and administration services.

4. 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) data access security shall be provided through managed firewall services with security on all web pages, a private network path for administration, and fully hardened servers.

5. BACK-UP, ARCHIVING AND RECOVERY SERVICES

The Supplier shall develop the 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 weekly full back-ups and daily incremental back-ups. In the event of data loss, the Supplier shall provide recovery services to try to restore the most recent back-up.

6. RELEASE MANAGEMENT AND CHANGE CONTROL

The Supplier shall provide release management and change control services to ensure that versions of servers, network devices, storage, operating system software and utility and application software are audited and logged, and that new releases, patch releases and other new versions are implemented as deemed necessary by the Supplier to maintain the Hosting Services.

7. ADMINISTRATION SERVICES

These services include the installation and administration of additional hardware, operating system and other software, and other resources as necessary to maintain the Hosting Services.

SCHEDULE 6 MAINTENANCE AND SUPPORT

1. TRAINING

The Supplier shall provide training to such number of the Authorised Users as are specified in, and are otherwise in accordance with, the Project Plan.

2. MAINTENANCE EVENTS

2.1 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 during the daily window of 10.00 pm to 2.00 am UK local time. In addition, the Supplier may interrupt the Hosting Services outside Normal Business Hours for unscheduled maintenance. 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.

2.2 The Supplier may determine, at its sole discretion, that providing appropriate service levels 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 Schedule 1.

3. MAINTENANCE

3.1 Maintenance includes all regularly scheduled error corrections, software updates and those upgrades limited to improvements to features described in the Software Specification. Support for additional features developed by the Supplier, as requested by the Customer, may be purchased separately at the Supplier’s then current rates.

3.2 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.

3.3 The Supplier shall maintain technical support on the two most current releases of the Software.

4. TECHNICAL SUPPORT SERVICES

4.1 The Supplier shall provide the Customer with technical support services. The Supplier shall use reasonable endeavours to provide continuity of SSEs.

4.2 Supplier technical support shall accept voicemail, e-mail and web form-based incident submittal from the customer 24 hours a day, seven days a week. 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 centre shall respond to all support requests from Customer’s within the time periods specified below, according to priority. The named Customer and Supplier technical support shall jointly determine the priority of any defect, using one of following priorities:

PRIORITY 1: The entire Service is “down” and inaccessible. Response time: Within 8 Normal Business Hours. Target resolution time: Within two Business Days. Continuous effort after initial response and with Customer co-operation.

PRIORITY 2: Operation of the Services is severely degraded, or major components of the Service are not operational and work cannot reasonably continue. Priority 2 incidents shall be reported by telephone only. Response time: Within 12  Normal Business Hours. Target Resolution Time: Within two Business Days after initial response.

PRIORITY 3: Certain non-essential features of the Service are impaired while most major components of the Service remain functional. Response time: Within 16 Normal Business Hours. Target Resolution Time: Within seven Business Days after initial response.

PRIORITY 4: Errors that are, non disabling or cosmetic and clearly have little or no impact on the normal operation of the Services. Response Time: Within 24 Normal Business Hours. Target Resolution Time: Next release of Software.

4.3 The Customer shall provide front-line support to Customer Authorised Users who are not the designated Customers. However, the Customer may contact Supplier technical support in order to report problems from Customer Authorised Users that the Customer cannot resolve themselves after they have performed a reasonable level of diagnosis.

4.4 The Customer shall also provide support for data integration tools and processes developed or maintained by the Customer in order to connect the Software to the Customer’s other software and databases.

4.5 Before the Supplier or the Customer makes changes to integration interfaces between the Software and the Customer’s internal data stores or systems, the Supplier or the Customer shall provide notice to the other in order to ensure the continued operation of any integration interfaces affected by such changes. The Supplier shall provide the Customer and the Customer shall provide the SSEs, with at least 60 days’ advance notice of such changes. Such notice shall include at least the new interface specifications and a technical contact to answer questions on these changes. The Supplier or the Customer (as applicable) shall also provide up to 15 days of integration testing availability to ensure smooth transition from the previous interfaces to the new interfaces and the Customer shall pay for all such services relating to integration testing carried out by the Supplier at the Supplier’s then current daily fee rates.

SCHEDULE 5  SERVICE LEVEL AGREEMENTS

1. SERVICE AVAILABILITY

The Supplier shall provide at least a [99.5%] uptime service availability level (Uptime Service Level). This availability refers to an access point on the Supplier hosting provider’s backbone network. It does not apply to the portion of the circuit that does not transit the hosting provider’s backbone network, as the Customer is responsible for its own internet access. Availability does not include Maintenance Events as described in paragraph 2.1 of Schedule 6, Customer-caused or third party-caused outages or disruptions (except to the extent that such outages or disruptions are caused by those duly authorised third parties sub-contracted by the Supplier to perform the Services), or outages or disruptions attributable in whole or in part to force majeure events within the meaning of clause 14.

2. SERVICE CREDITS

2.1 If availability falls below the Uptime Service Level (as defined in paragraph 1 of Schedule 7) in a given calendar month (Service Delivery Failure), the Supplier shall credit the Customer’s account by an amount calculated as the product of the total cumulative downtime (expressed as a percentage of the total possible uptime minutes in the month concerned) and the total Monthly Hosting Fee and Monthly Software Licence Fee owed for that month (Service Credit).

2.2 A Service Credit shall not be payable unless the Customer requests it within 40 Business Days of the service-affecting event(s). The maximum Service Credit allowable in a given month is limited to an amount equal to the total Monthly Hosting Fee and Monthly Software Licence Fee owed by the Customer for that month.

2.3 The Customer acknowledges and agrees that the terms of this Schedule 7  relating to Service Credits constitute a genuine pre-estimate of the loss or damage that the Customer would suffer as a result of the Supplier’s Service Delivery Failure and are not intended to operate as a penalty for the Supplier’s non-performance.