PARTIES
(1) SET For Business LIMITED incorporated and registered in England and Wales with company number 10780121 whose registered office is at Priam House, Fire Fly Avenue, Swindon SN2 2EH (SET For Business); and
(2) the company, firm or organisation referred to as the Customer in the Agreed Terms (the Customer).
BACKGROUND
(A) SET For Business has developed a Customer Relationship Management (CRM) platform which it makes available to subscribers via the internet on a subscription basis for the purpose of helping businesses with the management of their opportunities, prospects and customers.
(B) The Customer wishes to use SET For Business’s service in its business operations.
(C) SET For Business has agreed to provide and the Customer has agreed to take and pay for SET For Business’s service subject to the terms and conditions of this agreement.
AGREED TERMS
1.1 The definitions and rules of interpretation in this clause apply in this agreement.
Agreed Terms:
This agreement and any accompanying documents containing the Customer’s details and the agreed commercial terms.
Analytical Data:
the data provided to the Customer via the Services and in accordance with the Documentation detailing the Authorised Users use of the Services.
Authorised Users:
those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Services and the Documentation.
Business Day:
a day other than a Saturday, Sunday, bank or public holiday in England.
Confidential Information:
information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 10.6.
Core Hours:
7.00am to 8.00pm local UK time, each Business Day
Customer Data:
the data inputted by the Customer, Authorised Users, or SET For Business on the Customer’s behalf for the purpose of using the Services or facilitating the Customer’s use of the Services.
Data Protection Legislation:
(i) until 24 May 2018, the Data Protection Act 1998, (ii) from 25 May 2018, unless and until the GDPR is no longer directly applicable in the UK, the GDPR and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK and then (iii) any successor legislation to the GDPR or the Data Protection Act 1998.
Documentation:
the document made available to the Customer by SET For Business from time to time which sets out a description of the Services and the user instructions for the Services.
Effective Date:
the date on which the Customer agrees to the Agreed Terms and is supplied with the Services. The Initial Subscription Term may be cancelled at any point within its 30 day period and no further fees will apply.
Relationship Managers:
the designated representatives of the Customer and SET For Business from time to time who have day-to-day responsibility for the performance of their appointor’s obligations under this agreement and act as the principal point of contact between the parties, as set out in the Agreed Terms as amended by the appointing party to the other in writing.
Renewal Period:
the period described in clause 13.1.
Services:
the subscription services provided by SET For Business to the Customer under this agreement via https://www.setforbusiness.co.uk or any other website notified to the Customer by SET For Business from time to time.
Service Level Agreement:
the service level agreement set out in Schedule 1.
Software:
the online software applications provided by SET For Business as part of the Services.
Subscription Fees:
the subscription fees payable by the Customer to SET For Business for the User Subscriptions, as set out in Schedule 2 and subject to increase on 1st January each year. SET for Business will provide the Customer with not less than 30 days’ written notice of such increases.
Subscription Term:
has the meaning given in clause 13.1 (being the Initial Subscription Term together with any subsequent Renewal Periods).
User Subscriptions:
the user subscriptions purchased by the Customer pursuant to clause 8.1 which entitle Authorised Users to access and use the Services and the Documentation in accordance with 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 rearranging, 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 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.6 Unless the context otherwise requires, 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 as at the date of this agreement.
1.8 A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this agreement under that statute or statutory provision.
1.9 A reference to writing or written includes faxes but not e-mail.
1.10 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.
1.11 A reference to a holding company or a subsidiary means a holding company or a subsidiary (as the case may be) as defined in section 1159 of the Companies Act 2006. In the case of a limited liability partnership which is a subsidiary of a company or another limited liability partnership, section 1159 of the Companies Act 2006 shall be construed so that: (a) references in sections 1159(1)(a) and (c) to voting rights are to the members’ rights to vote on all or substantially all matters which are decided by a vote of the members of the limited liability partnership; and (b) the reference in section 1159(1)(b) to the right to appoint or remove a majority of its board of directors is to the right to appoint or remove members holding a majority of the voting rights.
2.1 Subject to the Customer purchasing the User Subscriptions in accordance with clause 3.3 and clause 8.1, the restrictions set out in this clause 2 and the other terms and conditions of this agreement, SET For Business hereby grants to the Customer a non-exclusive, non-transferable right to permit the Authorised Users to use the Services during the Subscription Term solely for the Customer’s internal business operations.
2.2 In relation to the Authorised Users, the Customer undertakes that:
(a) the maximum number of Authorised Users that it authorises to access and use the Services and the Documentation shall not exceed the number of User Subscriptions it has purchased from time to time;
(b) it will not allow or suffer any User Subscription to be used by more than one individual Authorised User;
(c) each Authorised User shall keep a secure password for his use of the Services, and that each Authorised User shall keep his password confidential;
(d) if SET for Business becomes aware that the Customer has) revealed any password to any individual who is not an Authorised User, then without prejudice to SET For Business’s other rights, the Customer shall promptly disable such passwords and SET For Business shall not issue any new passwords to any such individual; and
(e) if SET for Business becomes aware that the Customer has underpaid Subscription Fees to SET For Business, then without prejudice to SET For Business’s other rights, the Customer shall pay to SET For Business an amount equal to such underpayment as calculated in accordance with the prices set out in Schedule 2 within 10 Business Days of the date of the relevant audit.
2.3 The Customer shall not:
(a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:
(i) and except to the extent expressly permitted under this agreement, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or
(ii) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
(b) access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or
(c) use the Services and/or Documentation to provide services to third parties; or
(d) subject to clause 16.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except the Authorised Users, or
(e) attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this clause 2; and
2.4 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and, in the event of any such unauthorised access or use, promptly notify SET For Business.
2.5 The rights provided under this clause 2 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer unless the Agreed Terms specifies otherwise.
3.1 Subject to clause 3.2 and clause 3.3, the Customer may, from time to time during any Subscription Term, purchase additional User Subscriptions in excess of the number set out in the Agreed Terms and SET For Business shall grant access to the Services to such additional Authorised Users in accordance with the provisions of this agreement.
3.2 If the Customer chooses to add additional User Subscriptions, SET For Business will adjust the fees payable by the Customer, based on the number of users, at the next billing cycle.
3.3 Once payment of SET For Business’s invoice has been received, such additional User Subscriptions will be activated and the additional users will become Authorised Users.
4.1 SET For Business shall, during the Subscription Term, provide the Services to the Customer on and subject to the terms of this agreement.
4.2 If the Customer does not cancel the Services before the expiry of the Initial Subscription Period, it will be billed monthly for ongoing use of the Services in accordance with clause 8. If the Customer does cancel its account within the Initial Subscription Period, then it will not be charged.
4.3 SET For Business shall use commercially reasonable endeavours to provide the Services in accordance with the Service Level Agreement.
5.1 The Customer shall own all right, 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.
5.2 SET For Business shall follow its archiving procedures for Customer Data as set out in its Back-Up Policy. In the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy shall be for SET For Business to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by SET For Business in accordance with the archiving procedure described in its Back-Up Policy. SET For Business shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties subcontracted by SET For Business to perform services related to Customer Data maintenance and back-up).
5.3 SET For Business shall, in providing the Services, comply with its Privacy Policy relating to the privacy of the Customer Data. From time to time such document may be amended by SET For Business at its sole discretion.
5.4 Both SET For Business and the Customer will comply with all applicable requirements of the Data Protection Legislation. This Clause 5 is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation.
5.5 Both SET For Business and the Customer acknowledge that for the purposes of the Data Protection Legislation, the Customer is the data controller and SET For Business is the data processor (where Data Controller and Data Processor have the meanings as defined in the Data Protection Legislation).
5.6 Without prejudice to the generality of Clause 5.4, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data (as defined in the Data Protection Legislation) to SET For Business for the duration and purposes of the Subscription Term.
5.7 Without prejudice to the generality of Clause 5.4, SET For Business shall, in relation to any Personal Data processed in connection with the performance by SET For Business of its obligations under the Agreement:
(a) process that Personal Data only on the written instructions of the Customer unless SET For Business is required by the laws of any member of the European Union or by the laws of the European Union applicable to SET For Business to process Personal Data (Applicable Data Processing Laws). Where SET For Business is relying on laws of a member of the European Union or European Union law as the basis for processing Personal Data, SET For Business shall promptly notify the Customer of this before performing the processing required by the Applicable Data Processing Laws unless those Applicable Data Processing Laws prohibit SET For Business from so notifying the Customer; (b) ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Customer, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
(c) ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
(d) not transfer any Personal Data outside of the European Economic Area unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled:
(i) the Customer or SET For Business has provided appropriate safeguards in relation to the transfer;
(ii) the Data Subject (as defined in the Data Protection Legislation) has enforceable rights and effective legal remedies;
(iii) SET For Business complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
(iv) SET For Business complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Personal Data;
(e)assist the Customer, at the Customer’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(f) notify the Customer without undue delay on becoming aware of a Personal Data breach;
(g) at the written direction of the Customer, delete or return Personal Data and any relevant copies to the Customer on termination of the agreement unless required by Applicable Data Processing Law to store the Personal Data; and
(h) maintain complete and accurate records and information to demonstrate its compliance with this Clause 5.7.
6.1 SET For Business undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.
6.2 The undertaking at clause 6.1 shall not apply to the extent of any nonconformance which is caused by use of the Services contrary to SET For Business’s instructions, or modification or alteration of the Services by any party other than SET For Business or SET For Business’s duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, SET For Business will, at its expense, use all reasonable commercial endeavours to correct any such nonconformance 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 6.1. Notwithstanding the foregoing, SET For Business:
(a) does not warrant that the Customer’s use of the Services will be uninterrupted or error-free; or that the Services or the information obtained by the Customer through the Services will meet the Customer’s requirements; and
(b) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
6.3 This agreement shall not prevent SET For Business from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this agreement.
6.4 SET For Business warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this agreement.
7.1 The Customer shall:
(a) provide SET For Business with:
(i) all necessary co-operation in relation to this agreement; and
(ii) all necessary access to such information as may be required by SET For Business; in order to provide the Services, including but not limited to Customer Data, security access information and configuration services;
(b) comply with all applicable laws and regulations with respect to its activities under this agreement;
(c) carry out all other Customer responsibilities set out in this agreement 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, SET For Business may adjust any agreed timetable or delivery schedule as reasonably necessary;
(d) ensure that the Authorised Users use the Services in accordance with the terms and conditions of this agreement and shall be responsible for any Authorised User’s breach of this agreement;
(e) obtain and shall maintain all necessary licences, consents, and permissions necessary for SET For Business, its contractors and agents to perform their obligations under this agreement, including without limitation the Services; and
(g) be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to SET For Business’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet.
8.1 The Customer shall pay the Subscription Fees to SET For Business for the User Subscriptions in accordance with this clause 8 and the Agreed Terms.
8.2 The Customer shall prior to the Effective Date provide to SET For Business up-to-date and complete contact and billing details and SET For Business shall setup a Direct Debit mandate with the Customer:
(a) subject to clause 13.1, the Customer shall pay the fees for each Renewal Period, as invoiced by Set For Business, by Direct Debit and on or before the 1st of each calendar month.; and
(b) the Customer shall immediately notify Set For Business of any change in the Customer’s contact or billing details.
8.3 If SET For Business has not received payment by the Effective Date, and without prejudice to any other rights and remedies of SET For Business:
(a) SET For Business may, without liability to the Customer, disable the Customer’s account and access to all or part of the Services and SET For Business 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 a daily basis on such due amounts at an annual rate equal to 3% over the then current base lending rate of HSBC Bank plc from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
8.4 All amounts and fees stated or referred to in this agreement:
(a) shall be payable in pounds sterling;
(b) are, subject to clause 12.4(b), non-cancellable and non-refundable;
(c) are exclusive of value added tax, which shall be added to SET For Business’s invoice(s) at the appropriate rate.
8.5 SET For Business shall be entitled to increase the Subscription Fees, the fees payable in respect of the additional User Subscriptions purchased pursuant to clause 3.3 at the start of each Renewal Period upon 90 days’ prior notice to the Customer and the Agreed Terms shall be deemed to have been amended accordingly.
9.1 The Customer acknowledges and agrees that SET For Business and/or its licensors own all intellectual property rights in the Services and the Documentation. Except as expressly stated herein, this agreement does not grant the Customer any rights to, or in, patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services or the Documentation.
9.2 SET For Business confirms that it has all the rights in relation to the Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this agreement.
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;
(b) was in the other party’s lawful possession before the disclosure;
(c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
(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 SET For Business shall be permitted to share the following limited information with any SET For Business partner through whom the Customer was referred to SET For Business: Customer name, account status (active/inactive); number of Authorised Users; overview performance statistics; expiry date of current subscription term.
10.4 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.
10.5 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
10.6 The Customer acknowledges that details of the Services, and the results of any performance tests of the Services, constitute SET For Business’s Confidential Information.
10.7 SET For Business acknowledges that the Customer Data is the Confidential Information of the Customer.
10.8 This clause 10 shall survive termination of this agreement, however arising.
10.9 No party shall make, or permit any person to make, any public announcement concerning this agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
11.1 SET For Business shall defend the Customer, its officers, directors and employees against any claim that the Services infringe any United Kingdom patent effective as of the Effective Date, copyright, trade mark, 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) SET For Business is given prompt notice of any such claim;
(b) the Customer provides reasonable co-operation to SET For Business in the defence and settlement of such claim, at SET For Business’s expense; and
(c) SET For Business is given sole authority to defend or settle the claim.
11.2 In the defence or settlement of any claim, SET For Business may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this agreement on 2 Business Days’ notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
11.3 In no event shall SET For Business, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based
on:
(a) a modification of the Services or Documentation by anyone other than
SET For Business; or
(b) the Customer’s use of the Services in a manner contrary to the instructions given to the Customer by SET For Business; or
(c) the Customer’s use of the Services after notice of the alleged or actual infringement from SET For Business or any appropriate authority.
11.4 The foregoing states the Customer’s sole and exclusive rights and remedies, and SET For Business’s (including SET For Business’s employees’, agents’ and subcontractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
12.1 This clause 12 sets out the entire financial liability of SET For Business (including any liability for the acts or omissions of its employees, agents and subcontractors) to the Customer:
(a) arising under or in connection with this agreement;
(b) in respect of any use made by the Customer of the Services or any part of them; and
(c) in respect of 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 Services by the Customer, and for conclusions drawn from such use;
(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; and
(c) the Services are provided to the Customer on an “as is” basis.
12.3 Nothing in this agreement excludes the liability of SET For Business:
(a) for death or personal injury caused by SET For Business’s negligence; or
(b) for fraud or fraudulent misrepresentation.
12.4 Subject to clause 12.2 and clause 12.3:
(a) SET For Business 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) SET For Business’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 total Subscription Fees paid for the User Subscriptions during the 12 months immediately preceding the date on which the claim arose.
13.1 This agreement shall, unless otherwise terminated as provided in this clause 13, commence on the Effective Date and shall continue for the Initial Subscription Term and, thereafter, this agreement shall be automatically renewed monthly (on the first day of each calendar month) for successive periods of one calendar month (each a Renewal Period) , unless:
(a) either party notifies the other party of termination, in writing, at least 30 days before the end of the Subscription Term or any Renewal Period, in which case this agreement shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or
(b) otherwise terminated in accordance with the provisions of this agreement; and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the Subscription Term.
13.2 Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:
(a) the other party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 20 days after being notified in writing to make such payment;
(b) the other party commits a material breach of any other term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
(c) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(d) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(e) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party;
(f) the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;
(g) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
(h) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within 14 days;
(i) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 13.2(c) to clause 13.2(h) (inclusive).
13.3 On termination of this agreement for any reason:
(a) all licences granted under this agreement shall immediately terminate;
(b) SET For Business may terminate any licence granted to Authorised Users in connection with the use of a mobile application as part of the Services;
(c) each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party;
(d) SET For Business will destroy or otherwise dispose of any of the Customer Data in its possession 30 days after termination of this agreement and
(e) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced.
SET For Business 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 SET For Business 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.
15.1 Conflict. If there is an inconsistency between any of the provisions in the Agreed Terms and the Schedules, the provisions shall take precedence in the following order:
15.2 Variation. SET For Business shall be entitled to vary the terms of this agreement by giving the Customer 30 days’ notice. No other variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives). The administrator of the Customer’s account shall be deemed to be an authorised representative of the Customer.
15.3 Waiver. No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
15.4 Rights and Remedies. Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
15.5 Severance. 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.
15.6 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.
15.7 Entire Agreement. 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.
15.8 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.
15.9 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).
15.10 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.
16.1 The Customer shall not, without the prior written consent of SET For Business (which shall not be unreasonable withheld or delayed), assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
16.2 SET For Business 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.
17.1 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.
17.2 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 prepaid 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).
18.1 This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
18.2 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising 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 or, where the Customer enters into this agreement online, the agreement shall be deemed to have been entered into on the date the Customer’s order is accepted by SET For Business.
END OF TERMS – SEE SCHEDULE BELOW
Schedule 1 – Service Level Agreement
The following definitions and rules of interpretation apply in this schedule.
1.1 Definitions:
Commercially Reasonable Efforts:
the same degree of priority and diligence with which SET For Business meets the support needs of its other similar customers.
Customer Cause:
any of the following causes:
(a) any improper use, misuse or unauthorised alteration of the Software or Services by the Customer;
(b) any use of the Software or Services by the Customer in a manner inconsistent with the then-current Documents; and
(c) outages or disruptions to the Service caused by the Customer.
Fault:
any failure of the Services to operate in all material respects in accordance with the Documentation.
Help Desk Support:
any support provided by help desk technicians sufficiently qualified and experienced to identify and resolve most support issues relating to the Services.
Main Agreement:
the agreement to which this schedule relates.
Out-of-scope Services:
any services provided by SET For Business in connection with any apparent problem regarding the Services reasonably determined by SET For Business not to have been caused by a Fault, but rather by a Customer Cause or a cause outside SET For Business’s control (including any investigational work resulting in such a determination).
Service Levels:
the service levels set out in paragraph 5.1
Solution:
either of the following outcomes:
(a) correction of a Fault; or
(b) a workaround in relation to a Fault (including a reversal of any changes to the Software and/or Services if deemed appropriate by SET For Business) that is reasonably acceptable to the Customer.
Support Request:
request made by the Customer in accordance with this schedule for support in relation to the Services, including correction of a Fault.
Support Services:
Maintenance of the Software and providing Help Desk Support but excluding any Out-of-scope Services.
1.2 All initial capitalised terms in this schedule shall have the meaning given to them in the Main Agreement.
2.1 During the Subscription Term SET For Business shall perform the Support Services during the Normal Working Hours in accordance with the Service Levels.
2.2 As part of the Support Services, SET For Business shall:
(a) provide Help Desk Support by means of the following e-mail address support@setforbusiness.co.uk and by means of the help desk support page;
(b) use Commercially Reasonable Efforts to correct all Faults notified under paragraph (a); and
(c) provide technical support for the Software and the Services in accordance with the Service Levels.
2.3 SET For Business shall carry out planned maintenance outside of the Core Hours; and
2.4 SET For Business may reasonably determine that any services are Out-of-scope Services. If SET For Business makes any such determination, it shall promptly notify the Customer of that determination.
2.5 The Customer acknowledges that SET For Business is not obliged to provide Out-of-scope Services.
3.1 The provision of Support Services on a remote (via email), off-site basis within the Subscription Term shall be included in the Subscription Fees.
3.2 The provision of Support Services outside the Subscription Term or at the Customer’s premises or the provision of Out-of-scope Services shall be charged at the time and materials rates agreed between the parties when the Out-of-Scope Services are requested.
4.1 The Customer may request Support Services by way of a Support Request made via email by completing the support request form on the help desk support page.
4.2 Each Support Request shall include a description of the problem and the start time of the incident.
4.3 The Customer shall provide SET For Business with:
(a) prompt notice of any Faults; and
(b) such output and other data, documents, information, assistance and (subject to compliance with all Customer’s security and encryption requirements notified to SET For Business in writing) remote access to the Customer System, as are reasonably necessary to assist SET For Business to reproduce operating conditions similar to those present when the Customer detected the relevant Fault and to respond to the relevant Support Request.
4.4 All Support Services shall be provided remotely by SET For Business.
Service Availability and Maintenance
5.1 SET For Business shall use commercially reasonable endeavours to make the Services available 97% of the time during the Core Hours, except for unscheduled maintenance performed during the Core Hours, provided that SET For Business has used reasonable endeavours to give the Customer at least 3 Core Hours’ notice in advance.
6.1 If the Customer is not satisfied with the response or the response time, the Customer may escalate the Support Request to the parties’ respective Relationship Managers.
7.1 In addition to the mechanisms for giving notice specified in clause 17 of the Main Agreement, the parties may communicate in respect of any matter referred to in this by e-mail (unless specified otherwise).
Schedule 2 – Subscription Fees
| Period Name | Cost |
| Initial Subscription Term | No charge. |
| Renewal Period | Between £20 and £35 plus VAT per user, dependent on selected billing period and tier. |
Schedule 3
Details of the Personal Data being processed by SET For Business on behalf of the Customer:
The subject matter of the processing
Personal data processed pursuant to the Agreed Terms for the provision of CRM support and for the duration of the Agreed Terms.
The duration of the information processing activity
For the duration of the Agreement or as subsequently extended or terminated in accordance with the Agreed Terms.
The nature and purpose of the processing
The provision of CRM support services.
The type of personal data being processed
Personal data may include name, address, contact details, bank account details, salary details, National Insurance numbers, health data, racial or ethnic origin, political opinions, religious beliefs, trade union activities, sexual life, details of criminal offences, genetic information, biometric data, location data, online identifiers, genetic data, financial data of the Customer’s employees, former employees, customers, former customers, potential customers and business contacts.
The categories of data subjects
Customer employees, former employees, customers, former customers, potential customers and business contacts.
END OF SCHEDULES
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