United Kingdom - ASP AGREEMENT ADDITIONAL TERMS AND CONDITIONS
Effective as of July 15, 2018, these ASP Agreement Additional Terms and Conditions (these “Terms”) are and shall be deemed to be part of and incorporated into every Authorised Service Provider Agreement (“ASP Agreement”) dated on or after that date between Virium Technology LTD (“Service Provider”) and any customer of Service Provider (a “Customer”) and incorporated into all purchase orders, price quotes, written proposals, and schedules or addenda dated on or after that date and concerning specific Services (as hereafter defined) or aspects of specific Services, or amendments to any of the foregoing documents, by which Service Provider would provide Services or access to the Applications (as hereafter defined). Service Provider and Customer collectively may be called the “Parties”, and each may be called a “Party”. In the event of any conflict between these Terms, on the one hand, and any other terms or conditions of any ASP Agreement, purchase order, contract regarding any specific package, bundle or group of Services to be provided by Service Provider, or schedule, on the other hand, these Terms shall control.
WHEREAS, The Service Provider hosts and provides access to the Applications described herein its capacity as an Application Service Provider, and
WHEREAS, The Customer wishes to access the Applications described herein as hosted by the Service Provider under a non-exclusive Licence, from a remote location, in return for the payment of a monthly fee and subject to the terms and conditions of this Agreement
NOW, THEREFORE, in consideration of the premises, the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt, adequacy and sufficiency of which are hereby acknowledged, the Parties hereto covenant and agree as follows:
1.1 Definitions and Interpretations
1.1. In this Agreement, unless the context otherwise requires, the following expressions have the following meanings.
1.1.1. “Applications” means the selected software applications provided by the ASP which shall be available to the Customer;
1.1.2. “ASP Infrastructure” means the Service Provider’s computer hardware, firmware, software and communications infrastructure which is used to facilitate access to the Applications by the Customer;
1.1.3. “Business Day” means any day other than Saturday or Sunday that is not a public holiday;
1.1.4. “Business Hour” means any time between 8:00 AM and 6:00 PM GMT on a Business Day, during which the Service Provider is open for business;
1.1.5. “Commencement Date” means the date that this agreement is made on;
1.1.6. “Confidential Information” means all business, technical, financial or other information created or exchanged between the Parties throughout the Term of this Agreement;
1.1.7. “Customer Computer Systems” means the Customer’s computer hardware, firmware, software and communications infrastructure through and on which the Applications are to be used;
1.1.8. “Customer Data” means any data belonging to the Customer or to third Parties and used by the Customer under licence which is created using the Applications or otherwise stored in the ASP Infrastructure;
1.1.9. “Fees” means the sums payable by the Customer in return for access to the Applications, the ASP Infrastructure and support services provided by the Service Provider in accordance with Clauses 4 and 12 and Schedule 1 of this Agreement;
1.1.10. “Intellectual Property Rights” means all vested contingent and future intellectual property rights including but not limited to copyright, trademarks, service marks, design rights (whether registered or unregistered), patents, know-how, trade secrets, inventions, get-up and database rights;
1.1.11. “Non-Customer User” means a non-employee of the Customer who may not use the Service in the absence of written consent from the Service Provider as per sub-Clause 10.4;
1.1.12. “Service” means, collectively, the Applications, ASP Infrastructure and support services provided by the Service Provider to the Customer.
1.1.13. “Users” means an employee of the Customer who shall, from time to time, access the Applications through the ASP Infrastructure.
1.1.14. “SLA” means the level of services provided by the Service Provider in accordance with Schedule 2 of this Agreement; 1.1.15. “Customer” means Navigator Systems Ltd.
1.1.16. “Service Provider” means Virium Technology Ltd.
1.2. Unless the context otherwise requires, each reference in this Agreement to;
1.2.1. “writing”, and any cognate expression, includes a reference to any communication effected by electronic or facsimile transmission or similar means;
1.2.2. a statute or a provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time;
1.2.3. “this Agreement” is a reference to this Agreement and each of the Schedules as amended or supplemented at the relevant time;
1.2.4. a Schedule is a schedule to this Agreement;
1.2.5. a Clause, sub-Clause or paragraph is a reference to a Clause of this Agreement (other than the Schedules) or a paragraph of the relevant Schedule.
1.3. The headings used in this Agreement are for convenience only and shall have no effect upon the interpretation of this Agreement.
1.4. Words imparting the singular number shall include the plural and vice versa.
1.5. References to any gender shall include the other gender.
2. The Service
2.1. The Service Provider shall, with effect from the Commencement Date, provide the Service to the Customer on a non-exclusive basis for the duration of the Term of this Agreement and in accordance with the terms and conditions of this Agreement.
2.2. The Service Provider shall provide access to the Applications through the ASP Infrastructure and shall use its best and reasonable endeavours to ensure that such access is available, without interruption, 24 hours a day, 7 days a week, 365 days a year. This undertaking shall be subject to the exceptions contained in Clauses 4, 12, 18 and 19 of this Agreement.
2.3. The Service provider shall maintain standards and certification in accordance to ISO27001 for all aspects of services provided within this agreement.
3. Term
3.1. The Service will be provided by the Service Provider during the term of this agreement (the “Term"), which shall commence on the Commencement Date and will continue unless otherwise terminated in accordance with Clause 19 of this Agreement.
3.2. The “Term” will continue on the same terms and conditions as set out in this Agreement until terminated in accordance with Clause 19 of this Agreement
4. Fees and Payment
4.1. The Customer shall pay to the Service Provider all Fees due within 30 days of receipt of an invoice. The exception are the upfront fees as listed in the Service Request Order (SRO) which are payable upon contract approval (signature by the Customer).
4.2. In the event that the Customer does not pay all Fees due within the time period specified in sub-Clause 4.2 above, the Service Provider shall suspend the Customer’s use of the Service at the sole discretion of the Service Provider.
4.3. In the event that the Customer fails to pay under sub-Clause 4.3 then, without prejudice to sub-Clause 4.3, that amount shall bear interest from the due date until payment is made in full, both before and after any judgment, at 3% per annum over the base interest rate obtaining at the time.
4.4. The Service Provider reserves the right to vary the Fees from time to time as it may deem appropriate. Fees specified within Schedule 1 will remain (Fixed) for a period of twelve (12) months from the agreement date. The Customer shall receive 120 days’ written notice of any such variation after the fixed period. Such variations shall not exceed 3% per annum and take effect upon expiry of such notice
5. The Applications
5.1. The Customer is free during the term of this Agreement to either add to or remove from the selection of Applications, subject to availability of required applications from the Service Provider. The Fees shall be amended accordingly in the event of such modification.
6. Training
In the event that any Users require training in order to use the Applications, it shall be the responsibility of the Customer to ensure that all Users are appropriately trained and to bear any costs associated with such training. The Service Provider shall not provide any training of any kind save for advice on appropriate courses and/or materials.
7. Security
7.1. The Service Provider shall ensure that at all times the ASP Infrastructure includes firewalls, reserve power, redundant systems and backups.
7.2 The service Provider as standard will provide daily backups held for 14 days off site. Custom backup schedules are available upon request at additional cost to the Customer.
7.3 The Service Provider will not be held responsible for data lost due to viruses or misuse of the platform caused by the Customer or its Authorised users.
8. Maintenance
8.1. The Service Provider shall be responsible for all maintenance and upgrades to the ASP Infrastructure which may from time to time be required.
8.2. Subject to the provisions of Clause 12, the Customer shall be responsible for all maintenance and upgrades to the Customer Computer Systems which may from time to time be required.
8.3. Whenever possible, the Service Provider shall use its best and reasonable endeavours to undertake maintenance work outside of the Customer’s business hours.
8.4. Or unless maintenance is corrective in nature, maintenance shall only take place at scheduled times. The scheduled maintenance times under this Agreement shall be 11:00PM GMT – 5:00 AM GMT Monday - Sunday. Corrective maintenance shall be undertaken as and when required;
8.5. Or unless maintenance is corrective in nature, the Service Provider shall provide at least 2 Business Days’ notice of any maintenance which may affect the Customer’s use of the service. The Service Provider shall use its best and reasonable endeavours to provide as much notice as possible in the case of corrective maintenance, however advance notice may not always be possible;
8.6. Or where maintenance will disrupt the Service, the Service Provider shall aim to complete all necessary work within 2 Business Hours or as soon as possible thereafter where resolution in that time is not possible;
8.7. Or whenever possible, the Service Provider shall provide a workaround solution to the Customer to enable the Customer’s continued use of the Service or to enable use that is as close to normal as is possible under the prevailing circumstances.
9. Software Licenses
9.1. The Customer shall use all Applications under a non-exclusive, non-transferable licence, as set out in this Agreement. Access is only permitted through website and remote connections.
9.2. All Applications provided by the Service Provider are the property of the Service Provider unless otherwise stated and shall be covered by the terms of the licence included in this Agreement.
9.3. Where Applications are the property of a third party, the relevant licences for those Applications shall be agreed between the ‘Customer’ and the third party.
9.4. Where Applications are the property of a third party, the Service Provider warrants that they have all requisite authority to sub-licence such applications to the customer for the purposes of this Agreement and for use under its terms.
10. Applications and ASP Infrastructure Terms of Use
10.1. Users may access the Applications through the ASP Infrastructure at any given time.
10.2. Users’ access to the Applications and the ASP Infrastructure shall be controlled by means of website, remote desktop connections and the use of the service provider application(s).
10.3. Use by Non-Customer Users is not permitted under this Agreement in the absence of express written consent from the Service Provider, such consent not to be unreasonably withheld. The Service Provider may require such details as the reason that access to the Applications and ASP Infrastructure is required by the Non-Customer User, details of the Non-Customer User and other information which may be specified from time to time.
10.4. The Customer shall use the Service exclusively for the purposes of carrying on its business of software vendor.
10.5. The Service Provider shall monitor the Customer’s use of the Applications and ASP Infrastructure from time to time to ensure compliance with the terms and conditions of this Agreement and with the Reasonable Usage Policy. In the event that the Customer’s use of the Service exceeds levels deemed reasonable by the Reasonable Usage Policy, the Service Provider reserves the right to increase Fees, in accordance with Schedule 1, as it deems appropriate, supplying 30 days’ written notice to the Customer of such an increase.
10.6. The Customer is exclusively responsible for its use of the Service, including the conduct of individual Users (Users to include any authorised Non-Customer Users) and must ensure that all use is in accordance with this Agreement. The Customer shall notify the Service Provider immediately of any breaches of this Agreement by any Users or Non-Customer Users.
10.7. Access to the Applications is only permitted through website and remote desktop connections, via the ASP Infrastructure. Under no circumstances may the Customer download, store, reproduce or redistribute the Applications or any other part of the ASP Infrastructure, without first obtaining the express written permission of the Service Provider.
10.8. The Customer’s use of the Applications and ASP Infrastructure may, from time to time, be governed by statutory or regulatory rules and requirements external to the terms and conditions of this Agreement. It shall be the Customer’s exclusive responsibility to ensure that their use of the Service is in compliance with any such laws.
10.9. The Customer’s use of the Service shall be subject to the following limitations, any of which may be waived by the Service Provider giving their express written consent;
10.9.1. The Customer may not use or redistribute the Applications or the ASP Infrastructure for the purpose of conducting the business of an Application Service Provider;
10.9.2. The Customer may not redistribute or reproduce the Applications or the ASP Infrastructure through any network; and
10.9.3. The Customer may not allow any unauthorised third party to access the Applications or the ASP Infrastructure
10.10. Neither the Customer, nor anyone on their behalf may, in the absence of written consent from the Service Provider;
10.10.1. Make changes of any kind to the Applications or the ASP Infrastructure; or
10.10.2. Attempt to correct any fault or perceived fault in the Applications or the ASP Infrastructure.
11. Customer Computer Systems
11.1. Prior to commencement of the Service, the Service Provider may require assurance of compatibility between the Customer Computer Systems and the Applications and ASP Infrastructure. Where appropriate, the Service Provider may offer recommendations for upgrades and other alterations. Any such recommendations shall be presented in a written report to the Customer.
11.2. Where, in the opinion of the Service Provider, Customer Computer Systems are likely to cause disruption to the ASP Infrastructure, the Service Provider may request that the Customer disconnects from the ASP Infrastructure until advised that reconnection is possible. The Service Provider may require changes such as upgrades or equipment replacement to be made to the Customer Computer Systems prior to reconnection.
11.3. In the event of any unauthorised access by the Customer of Applications or the ASP Infrastructure, in breach of sub-Clause 10.3 or otherwise, the Service Provider shall be entitled to terminate access indefinitely or temporarily as it deems appropriate and to terminate this Agreement in accordance with Clause 19 below.
11.4. The Customer shall ensure that no Customer Computer Systems are connected to a third party ASP system or other service, communications system or network in such a way that the Service may be accessed by unauthorised third Parties.
12. Support
12.1. The Service Provider shall provide support in accordance to the Service Level Agreement subject to schedule 2 of this agreement.
13. Intellectual Property
13.1. Subject to sub-Clause 13.2 all Intellectual Property Rights subsisting in the Applications and the ASP Infrastructure, including any supporting software and documentation are the property of the Service Provider. For the purposes of this Clause 13, ‘Applications’ and ‘ASP Infrastructure’ along with supporting software and documentation are taken to include the manner in which all such material is compiled and presented.
13.2. Where expressly indicated, the Intellectual Property Rights subsisting in certain Applications including any supporting software and documentation may be the property of named third Parties.
13.3. The Customer shall not either during the term or after the expiry of this Agreement permit or cause to occur any infringement of any Intellectual Property Rights covered by this Clause 13. Use by the Customer and its employees of the Service shall be only within the terms of this Agreement.
13.4. The Customer shall not, in the absence of the Service Provider’s written consent, reproduce, adapt, translate, reverse-engineer, or make available to any third party any of the Applications, any part of the ASP Infrastructure, or any other material associated with this Agreement where such activity goes beyond the scope of actions permitted by the terms and conditions of this Agreement.
13.5. Where the Customer either suspects or is aware of any breach of Intellectual Property Rights covered by this Clause 13 it shall be under a duty to inform the Service Provider of such breach immediately.
13.6. Customer’s object and/or compiled code remains the property of the Customer;
13.6.1. The Service Provider and its affiliates acknowledge that this license agreement is only with respect to the object code of the Customer’s Software Product(s). The concept and subsequent combination of code to create Customer’s Software Product, and any subsequent changes thereto, remain the property of the Customer. Distribution of the Customers Software Product in whole or in part, either verbally, electronically or written is strictly prohibited.
13.6.2. Accordingly, the Service Provider and related affiliates will;
13.6.2.1. not print, copy, reproduce, distribute, modify or in any other manner duplicate the Customer’s Software Product, in whole or in part, other than for backup purposes;
13.6.2.2. not use or allow the use of the Customer’s Software Product other than for its hosting use;
13.6.2.3. not seek any copyright, patent or other protection for the Customer’s Software Product.
14. Customer Data
14.1. Subject to sub-Clause 14.2 all Intellectual Property Rights subsisting in Customer Data are and shall remain the property of the Customer.
14.2. Certain Customer Data may belong to third Parties. In such cases, the Customer warrants that all such Customer Data is used with the consent of relevant third Parties.
15. Confidentiality
15.1. During the Term of this Agreement and after the termination or expiration of this Agreement for any reason, the Service Provider shall use its best and reasonable endeavors to ensure that all Customer Data is kept secure and confidential. The Service Provider shall not, in the absence of express written consent from the Customer, disclose Customer Data to any third party unless such disclosure is required by law in which case the Customer shall be notified in writing of the disclosure.
15.2. During the Term of this Agreement [and after termination or expiration of this Agreement for any reason for a period of 1 month starting on “Date”], the following obligations shall apply to the Party receiving Confidential Information (the “Receiving Party”) from the other Party (the “Disclosing Party”).
15.3. Subject to sub-Clause 15.4, the Receiving Party;
15.3.1. may not use any Confidential Information for any purpose other than the performance of their obligations under this Agreement;
15.3.2. may not disclose any Confidential Information to any third party except with the prior written consent of the Disclosing Party; and
15.3.3. shall make every effort to prevent the unauthorised use or disclosure of the Confidential Information.
15.4. The obligations of confidence referred to in this Clause 15 (excluding sub-Clause 15.1) shall not apply to any Confidential Information that;
15.4.1. is in the possession of and is at the free disposal of the Receiving Party or is published or is otherwise in the public domain prior to its receipt by the Receiving Party;
15.4.2. is or becomes publicly available on a non-confidential basis through no fault of the Receiving Party;
15.4.3. is required to be disclosed by any applicable law or regulation; or
15.4.4. is received in good faith by the Receiving Party from a third party who, on reasonable enquiry by the Receiving Party claims to have no obligations of confidence to the Disclosing Party in respect thereof and who imposes no obligations of confidence upon the Receiving Party
15.5. Without prejudice to any other rights or remedies the Disclosing Party may have, the Receiving Party acknowledges and agrees that in the event of breach of this Clause the Disclosing Party shall, without proof of special damage, be entitled to an injunction or other equitable remedy for any threatened or actual breach of the provisions of this Clause in addition to any damages or other remedies to which they may be entitled.
15.6. The obligations of the Parties under all provisions of this Clause shall survive the expiry or the termination of this Agreement irrespective of the reason for such expiry or termination.
15.7. The Customer and Service Provider each agree to keep all correspondence between them, as well as related information and contents, confidential including but not limited to pricing. Confidentiality also applies to data exchanged such as investor and borrower information and or any managed corporate information.
16. Liability
16.1. Subject to Clause 17 of this Agreement, the Service Provider will only be liable to the Customer for any incident caused directly by the Service Provider and will not be liable for indirect or consequential loss the Customer may suffer for actions out of the Service Provider’s control.
16.2. The Service Provider’s entire liability to the Customer in respect of any breach of its contractual obligations, any breach of warranty, any representation, statement or tortious act or omission including negligence arising under or in connection with this Agreement shall be limited to £500,000.00
16.3. Notwithstanding any other provision in this Agreement, the Service Provider’s liability to the Customer for death or injury resulting from the Service Provider’s own negligence or that of their employees, agents or subcontractors shall not be limited.
16.4. Service Provider agrees that the Customer and its affiliates and their respective successors, affiliates, consultants, officers, directors, employees, and agents are not liable for any errors, law suits, or bad business practices of the Service Provider or the Companies Clients in connection with the Licensee’s use of the Software Product. The Customer will not be held liable for loss of data, errors in use of the software or corporate errors.
17. Indemnity
17.1. The Customer will fully indemnify the Service Provider against all costs, expenses, liabilities, losses, damages and judgments that the Service Provider may incur or be subject to as a result of any of the following:
17.1.1. The Customer’s misuse of the Applications, ASP Infrastructure or any other element of the Service;
17.1.2. The Customer’s breach of this Agreement; or
17.1.3. The Customer’s negligence or other act of default.
17.2. The Service Provider shall be under no obligation to indemnify the Customer against any costs, expenses, liabilities, losses, damages and judgments that the Customer may incur or be subject to arising out of any matter covered by this Agreement.
18. Force Majeure
18.1. Neither the Service Provider nor the Customer shall be liable for breaching this Agreement where that breach results from Force Majeure.
18.2. Force Majeure refers to any event that is beyond the reasonable control of the Parties and includes, but is not limited to: power failure, internet service provider failure, industrial action, civil unrest, theft, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the Party in question.
19. Termination
19.1. The Service Provider reserves the right to terminate this Agreement or to suspend the Service without notice in the following circumstances;
19.1.1. If the Customer fails to pay Fees due under Clause 4 of this Agreement.
19.1.2. If the Customer is in breach of the terms of this Agreement.
19.1.3. If the Customer has a receiver, manager, administrator or administrative receiver appointed over all or a substantial part of its undertakings, assets, or income; has passed a resolution for its winding up; or is the subject of a petition presented to a court for its winding up or for an administration order.
19.2. The Customer reserves the right to terminate this Agreement in the following circumstances;
19.2.1. If the Service Provider is in breach of the terms of this Agreement;
19.2.2. If the Service Provider has a receiver, manager, administrator or administrative receiver appointed over all or a substantial part of its undertakings, assets, or income; has passed a resolution for its winding up; or is the subject of a petition presented to a court for its winding up or for an administration order.
19.2.3. The Customer with three (3) months written notification can terminate this agreement; it is agreed that non-termination of this agreement will be in effect for a period of (36) months from the date of signature.
19.3. Within 30 Business Days of the termination of this Agreement in accordance with this Clause 19 or the expiry of this Agreement, the Customer shall uninstall or otherwise remove any means of access to the Applications and ASP Infrastructure including, but not limited to, client software supplied by the Service Provider for that sole purpose. Immediately following taking such action, the Customer shall inform the Service Provider in writing that such action has been taken. [The Service Provider shall have the right to dispatch a representative to the Customer’s premises for verification purposes.]
19.4. Upon termination in accordance with this clause 19, or at the request of the Customer, the service provider will remove any Customer Data and the Customer's Computer Systems from the Service Provider’s systems and provide them to the Customer with a written statement that none of their systems no longer contain any Customer data or systems.
20. Notices
20.1. All notices under this Agreement shall be in writing.
20.2. Notices shall be deemed to have been duly given;
20.2.1. when delivered, if delivered by courier or other messenger (including registered mail) during normal business hours of the recipient; or
20.2.2. when sent, if transmitted by fax or e-mail and a successful transmission report or return receipt is generated; or
20.2.3. on the fifth business day following mailing, if mailed by national ordinary mail, postage prepaid; or
20.2.4. on the tenth business day following mailing, if mailed by airmail, postage prepaid
20.3. In each case notices should be addressed to the most recent address, e-mail address, or facsimile number notified to the other Party
21. Relationship of Parties
Nothing in this Agreement shall create, or be deemed to create, a partnership, the relationship of principal and agent, or of employer and employee between the Service Provider and the Customer.
22. Assignment
Neither Party shall assign, transfer, sub-contract, or in any other manner make over to any third party the benefit and/or burden of this Agreement without the prior written consent of the other, such consent not to be unreasonably withheld.
23. Severance
The Parties agree that, in the event that one or more of the provisions of this Agreement is found to be unlawful, invalid or otherwise unenforceable, that / those provisions shall be deemed severed from the remainder of this Agreement. The remainder of this Agreement shall be valid and enforceable.
24. Entire Agreement
24.1. This Agreement embodies and sets forth the entire agreement and understanding between all Parties and supersedes all prior oral or written agreements, understandings or arrangements relating to the subject matter of this Agreement. All Parties shall be entitled to rely on any agreement, understanding or arrangement not expressly set forth in this Agreement, save for any representation made fraudulently.
24.2. Unless otherwise expressly provided elsewhere in this Agreement, this Agreement may be varied only by a document signed by all of the Parties.
25. No Waiver
The Parties agree that no failure by either Party to enforce the performance of any provision in this Agreement shall constitute a waiver of the right to subsequently enforce that provision or any other provision of this Agreement. Such failure shall not be deemed to be a waiver of any preceding or subsequent breach and shall not constitute a continuing waiver.
26. Non-Exclusivity
26.1. The relationship between the parties under this Agreement is and shall remain nonexclusive.
26.2. All Parties are free to enter into similar relationships with other Parties
27. Dispute Resolution Arbitration
27.1. It is agreed that where any dispute or difference relating to this Agreement arises between the Parties that matter shall be referred to the arbitration of a single arbitrator with appropriate qualifications and practical experience to resolve the particular dispute.
27.2. The arbitrator shall be agreed to by the Parties.
27.3. The arbitration shall take place in a mutual location.
27.4. The Parties shall promptly furnish to the arbitrator all information reasonably requested by him relating to the particular dispute, imposing appropriate obligations of confidence.
27.5. The Parties shall require the arbitrator to use all reasonable endeavours to render his decision within 30 days following his receipt of the information requested or if this is not possible as soon thereafter as may reasonably be practicable. The Parties shall co-operate fully with the arbitrator to achieve this objective.
27.6. The Parties shall share the fees and expenses of the arbitrator equally. The decision of the arbitrator shall be final and binding upon all Parties.
27.7. The Parties agree to exclude any right of application or appeal concerning any question of law arising in the course of the arbitration.
28. Law and Jurisdiction
28.1. The laws of England and Wales apply and shall govern this Agreement.
28.2. Any dispute between the Parties relating to this Agreement shall fall within the jurisdiction of the courts of the United Kingdom.