Master Services Framework Agreement

The Conditions

1. Interpretation

1.1 The definitions and rules of interpretation in this clause apply in the Agreement.

1.2 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of the Agreement. A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of the Agreement under that statute or statutory provision.

2. Framework

2.1 This Agreement operates as a framework agreement under which We may provide the Solution, Software and /or Services to You from time to time. No changes to this Agreement are accepted unless they have been agreed by both of us in writing. This Agreement shall begin on the date of signature by the Customer.

2.2 This Agreement shall be supplemented by the terms of any Schedules which are relevant to the Solution, Software and/or Services You acquire through Us. Each time You wish to purchase additional Software and/or Services, both of us shall agree a Proposal, Quotation or a Change Control setting out the details of the Software and/or Services to be supplied. Once the Proposal/Quotation/Change Control has been agreed, signed by You and You have paid any deposit required, We shall raise an order against the pricing contained in the Proposal/Quotation/Change Control and, both of us shall be bound to supply / purchase the relevant Software /Services subject to these Conditions and the applicable Schedule(s).

2.3 Either party may cancel Software / Services in accordance with the cancellation terms set out in the relevant Schedule. Such cancellation shall not operate to cancel any other Software / Services in place at that time or this Agreement. However, if this Agreement is terminated by either party in accordance with it terms, such termination shall operate to end all Subscriptions and Services You have in place at the date of termination, except termination shall not affect any Subscriptions You have in place for Sage Software and/or Third Party Software which have a remaining subscription period, where such Subscriptions are moved to an alternative Sage partner.

3. Our obligations

3.1 We shall, provide the Solution, Software and/or Services to You subject to these Conditions and the applicable Schedules.

3.2 The Services shall be supplied in a professional and diligent manner, using reasonable skill and care, in accordance with good industry practice.

3.3 We use reasonable endeavours to meet any timings agreed in writing between us for delivery of the Solution, Software and/or Services but we do not guarantee that the Software and/or Services shall be supplied in accordance with any such timings.

3.4 We reserve the right to alter the scope of the Solution, Software and/or Services to be supplied if this is necessary to comply with any applicable law or regulatory requirement.

4. Your obligations

4.1 You shall:

4.1.1 co-operate with Us and provide Us with the information We reasonably require in order to provide the Solution, Software and/or Services to You including (without limitation):

a) promptly supplying to Us any information and/or documentation We reasonably require in order to provide the Solution, Software and/or Services and ensuring such information and documentation is accurate, complete and correct;

b) promptly approve any documents We or Datel Advansys (on Our behalf) ask You to approve. Where you do not approve a document We have made available to You (or Datel Advansys has made available to You on Our behalf), You shall confirm this to Us or Datel Advansys (as applicable) together with Your reasons for rejection of such document within 5 Working Days of the document being made available to You. To avoid any doubt this includes the Project Plan and the Specification. If You fail to approve or reject any such document within 5 Working Days, You shall be deemed to have accepted the relevant document;

c) where applicable performing Your tasks set out in the Project Plan in a timely manner and making appropriate resources available as are reasonably necessary for delivery of the Services;

4.1.2 provide Us and Our employees, agents, consultants and subcontractors, with access to Your premises, office accommodation and other facilities, and/or access to Your systems, as reasonably required by Us to provide the Solution, Software and/or Services, subject to Us complying with any health, safety and security policies and procedures which You notify to Us in advance;

4.1.3 obtain and maintain all necessary licences which may be required for the Solution, Software and/or Services. It is Your responsibility to ensure You comply with the terms applicable to any such licences;

4.1.4 comply with all applicable laws;

4.1.5 keep any of Our materials, equipment, documents and other property (Datel Materials) at Your premises in safe custody at Your own risk, maintain the Datel Materials in good condition until returned to Us, and not dispose of or use the Datel Materials other than in accordance with Our written instructions or authorisation.

4.2 Where We are providing data loading services to You this clause 4.2 shall apply. It shall be specified in the Quotation / Proposal as to whether data loading services are being supplied by Us to You as part of the Services. The following applies in respect of any data loading services We supply to You:

4.2.1 You shall, in a timely manner, provide Us with a complete and accurate copy of all Customer Data to be migrated on to the Solution as part of the Services in such format as We reasonably request;

4.2.2 We shall use reasonable efforts to ensure the accurate loading of such Customer Data, but We give no warranties as to the completeness or accuracy of such loading;

4.2.3 You shall be responsible for checking the accuracy and completeness of the migrated data and shall promptly give details to Us of any inaccuracies or omissions in the migrated data, and We shall promptly correct such inaccuracy or omission. Unless otherwise agreed, We shall not be responsible for cleansing any of the Customer Data prior to it being loaded onto the Solution.

4.3 To avoid any doubt, except where Hosting Services are being supplied by Us, You shall be responsible for ensuring regular backups of Your data (including Personal Data) are taken (regular meaning at such frequency as would be considered good practice for a business of Your size and nature, given the nature of the data you hold, and on the basis that daily backups of data are generally considered to be good industry practice). Where You fail to take regular backups of data, then We reserve the right to charge You for any time We spend restoring or recovering Your data arising as a result of Your failure to take regular backups of data.

4.4 If We cannot perform or We are delayed in performing any of Our contractual obligations due to Your acts or omissions or a failure by You to perform Your contractual obligations (Your Default):

4.4.1 without limiting or affecting any other right or remedy available to Us, We may suspend supply of the Solution, Software and/or Services until You remedy Your Default, and We can rely on Your Default to relieve Us from the performance of any of Our obligations in each case to the extent Your Default prevents or delays Us performing any of Our obligations;

4.4.2 We will not be liable for any costs or losses You suffer or incur due to Our failure or delay in performing Our obligations as set out in this clause 4.4; and

4.4.3 You will reimburse Us on written demand for any costs or losses We suffer or incur arising as a result of Your Default.

5. Changes

5.1 If You require a Change to the Solution, Software and/or Services You shall notify Us of Your requirements. Following consideration by both parties of Your requirements, a Change Control shall be prepared by Us outlining the nature and details of the Change including details of any impact the Change may have on the Fees, the timescales for delivery of the Solution, Software and/or Services and any other relevant information.

5.2 You shall promptly consider the Change Control and notify Us in writing within fifteen (15) Working Days if You are happy to proceed with the Change based on the details We have provided to You following which We shall implement the Change on Your behalf. Where applicable, You accept that if the Change is significant We may need to amend the Project Plan or prepare a new Project Plan.

6. Charges and payment

6.1 The Fees shall be as specified in the Proposal / Quotation  or as otherwise agreed in writing by both of us in a Change Control, and shall be invoiced in advance as detailed in the relevant Schedule or otherwise agreed in writing. Where You require Us to work outside of Our usual working hours in order to perform the Services, We shall charge You a premium rate for such overtime which We shall approve with You.

6.2 Our invoices are due for payment within thirty (30) days of the date of invoice unless otherwise agreed in writing. If You dispute Our invoice, You must tell Us as soon as possible, and in any event, before the invoice is due for payment.

6.3 Value added tax shall be added to Our invoices where applicable.

6.4 If Our invoices are not paid on the due date, unless You have told Us that you dispute the invoice (in accordance with clause 6.3) then We may either:

6.4.1 suspend supply of the Solution, Software and/or Services by giving You ten (10) Working Days’ notice in writing, until payment of all outstanding invoices has been made; and

6.4.2 treat such non-payment as a material breach and terminate the Agreement in accordance with clause 11.2.1.

6.5 If payment of any undisputed invoice is overdue, We may, at Our discretion, charge You interest on such overdue sum under the Late Payment of Commercial Debts (Interest) Act 1998 from the due date of payment until the date of actual payment.

7. Intellectual property rights

7.1 You acknowledge and agree that We and/or Our licensors own all Intellectual Property Rights in the Software, Solution and/or the Hosting Platform supplied to You. Where You have purchased or subscribed to take Third Party Software, such Third Party Software will be warranted in accordance with relevant Vendor Terms. Where You have purchased Sage Software, such Sage Software will be warranted in accordance with the relevant Sage Terms.

7.2 We shall reimburse You for any direct liabilities, costs, expenses, damages and losses You incur due to a third party claiming that Your use of the Fusion Software and/or the Bespoke Software infringes that third party’s Intellectual Property Rights provided that, if any third party makes a claim, or notifies You of an intention to make a claim, which may reasonably be considered likely to give rise to a liability under this clause (Claim), You shall:

7.2.1 as soon as reasonably practicable, give Us written notice of the Claim, specifying the nature of the Claim in reasonable detail;

7.2.2 not make any admission of liability, agreement or compromise in relation to the Claim without Our prior written consent (such consent not to be unreasonably withheld or delayed);

7.2.3 give Us and Our professional advisers access at reasonable times (on reasonable prior notice) to Your premises and Your officers, directors, employees, agents, representatives or advisers, and to any relevant documents and records within Your power or control, so as to enable Us and Our professional advisers to examine them and to take copies (at Our expense) for the purpose of assessing the Claim; and/or

7.2.4 take such action as We may reasonably request to avoid, dispute, compromise or defend the Claim.

7.3 Nothing in this clause shall restrict or limit Your general obligation at law to mitigate a loss You may suffer or incur as a result of an event that may give rise to a Claim.

8. Data protection

8.1 You 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 all such Customer Data.

8.2 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 8 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under the Data Protection Legislation.

8.3 Both of Us acknowledge that:

8.3.1 if We process any personal data on Your behalf when performing Our obligations under the Agreement, You are the controller and We are the processor for the purposes of the Data Protection Legislation.

8.3.2 The Data Protection Annex sets out the scope, nature and purpose of processing by Us, the duration of the processing and the types of personal data and categories of data subject. You undertake that We will not be required to process any Special Category Personal Data (as defined in Data protection Legislation) on Your behalf. If You require Us to process any Special Category Personal Data then You must obtain Our prior written consent before any such processing commences.

8.3.3 Subject always to clause 8.5.2, personal data may be transferred or stored outside the EEA or the country where You are located in order to provide the Software and/or Services under the Agreement.

8.4 Without prejudice to the generality of clause 8.2, You will ensure that You have all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to Us for the duration and purposes of the Agreement.

8.5 Without prejudice to the generality of clause 8.2, We shall, in relation to any personal data processed by Us when We perform Our obligations under the Agreement:

8.5.1 process that personal data only on Your documented written instructions unless We are required by laws of any member of the European Union and/or Domestic UK Law to process such personal data (Applicable Laws). If Applicable Laws require Us to process such personal data, We shall tell You before such processing unless those Applicable Laws prohibit Us from doing so;

8.5.2 not transfer any personal data outside of the European Economic Area and the United Kingdom unless the following conditions are fulfilled:

a) We have provided appropriate safeguards in relation to the transfer;

b) the data subject has enforceable rights and effective legal remedies;

c) We comply with Our obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and

d) We comply with Your reasonable advance instructions when processing Your personal data;

8.5.3 assist You, at Your cost, in responding to any request from a data subject to enable You to comply with Your Data Protection Legislation obligations with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;

8.5.4 promptly notify You on becoming aware of a personal data breach affecting Your personal data;

8.5.5 at Your written request and on termination of the Agreement, delete or return Your personal data unless required by Applicable Law to store the personal data; and

8.5.6 maintain records and information to demonstrate Our compliance with this clause 8 and promptly tell You if, in Our opinion, Your instructions infringe Data Protection Legislation.

8.6 Each party shall ensure that it has in place appropriate technical and organisational measures, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage, having regard to the state of technological development and the cost of implementing any such measures. Notwithstanding the foregoing, both of us acknowledge that due to the nature of the Services We provide, the risk of cyberattacks, ransomware attacks and similar is ever present. We have in place a number of technical, organisational and security measures to safeguard Our systems and Our Services from such attacks, details of which can be provided on request. Should We experience a cyberattack, ransomware attack or similar event, which has or may impact You and/or Your Services, We shall notify You as soon as possible after becoming aware and take appropriate steps to minimise the impact of the attack on both of us. Provided We have complied with the foregoing, We cannot be liable to You for any losses You experience as a result of such cyberattack, ransomware attack or similar beyond the limits specified in clause 10.3.2(a). We recommend You obtain Your own cyber insurance cover, and implement Your own security measures to protect against the impact of any such attack on You.

8.7 You consent to Us appointing third-party processors of personal data under the Agreement. A list of the third party processors relevant to Your Solution and Your Services is available on request. We confirm that We have entered or (as the case may be) will enter into a written agreement with third-party processors incorporating terms which are substantially similar to those set out in this clause 8. We shall remain fully liable for all acts or omissions of any third-party processor appointed by Us pursuant to this clause 8.

9. Confidentiality

9.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under the Agreement. A party's Confidential Information shall not be deemed to include information that:

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

9.1.2 was in the other party's lawful possession before the disclosure;

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

9.1.4 is independently developed by the receiving party, which independent development can be shown by written evidence.

9.2 Subject to clauses 9.3 and 4, each party shall for the duration of the Agreement and for five (5) years thereafter, hold the other's Confidential Information in confidence and 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 the Agreement.

9.3 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 the Agreement. In order to provide certain Services to You which involve Third Party Software and/or Sage Software We may need to share Your information and contact details with Sage / the Vendor(s) of such third party software. You hereby authorize such information sharing to the extent this is required.

9.4 A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.

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

9.6 We acknowledge that the Customer Data is Your Confidential Information.

9.7 We may publicise Our involvement with You with Your prior written consent such consent not to be unreasonably withheld or delayed.

9.8 You acknowledge and agree that Our Confidential Information includes this Agreement which includes any Proposals, Quotations, Project Plans and/or any other documentation We create for You which is proprietary to Us. We do not give permission for such Confidential Information to be processed through or used with any software and/or application which is classed as artificial intelligence (such as, without limitation, ChatGPT, Microsoft Co-Pilot, Gemini) and You should not use (and We do not give consent for You to use) such Confidential Information with artificial intelligence.      

10. Limitation of liability

10.1 Except as expressly and specifically provided in the Agreement 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 the Agreement. We do not warrant that the operation of the Solution and/or the Hosting Platform will be uninterrupted or error free.

10.2 Nothing in the Agreement excludes the liability of either of us:

10.2.1 for death or personal injury caused by the other party’s negligence; or

10.2.2 for fraud or fraudulent misrepresentation.

10.3 Subject to clause 1 and clause 10.2:

10.3.1 Neither of us shall be liable to the other, for any special, indirect or consequential losses suffered or incurred by the other due to a breach of the Agreement, which shall include (without limit) loss of profits, loss of business, damage to goodwill or loss or corruption of data; and

10.3.2 Each party’s total aggregate liability to the other: (a) for any claims arising in connection with the Agreement shall be limited to the Fees paid by You during the twelve (12) months immediately preceding the date on which the claim arose (or where a claim arises in the first year of the Agreement, the Fees which are anticipated to be paid during the first year of the Agreement); and (b) for any claims arising under clauses 7.2 and/or 8 shall be limited to £1,000,000 (one million pounds).

11. Term and termination

11.1 11.1    The Agreement shall start on the date it is signed by You. Your rights to terminate the relevant Software and/or Services for convenience are detailed in the “Duration and Cancellation” paragraph in the applicable Schedule.   

11.2 Without affecting any other right or remedy available to it, either party may terminate the Agreement with immediate effect by giving written notice to the other party if:

11.2.1 the other party commits a material breach of any other term of the Agreement and (if such breach is capable of remedy) fails to remedy that breach within thirty (30) days of being notified in writing to do so;

11.2.2 the other party suspends, or threatens to suspend, payment of its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986; the other party enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation or reconstruction; a resolution is passed in connection with the winding up of the other party other than for the sole purpose of a scheme for a solvent amalgamation or reconstruction; an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given; 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; 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; a creditor or encumbrancer of the other party attaches or takes possession of, or other such process is levied or enforced on or sued against, the other party’s assets;

11.2.3 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 2.2; or

11.2.4 the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.

11.3 On termination of the Agreement for any reason:

11.3.1 We shall cease providing the Services to You and invoice You for all Fees due and/or incurred up to the termination date;

11.3.2 You shall complete any documentation We, Sage and/or Our Third Party Software vendors require in order to effect termination of the Services, Software and/or this Agreement (as applicable); and

11.3.3 any rights, remedies, obligations or liabilities that have accrued up to the date of termination shall not be affected or prejudiced; and

11.3.4 any Clauses which are intended to remain in effect after the date of termination or expiry, shall remain in full force and effect.

12. Force Majeure

Neither party is responsible for failure to fulfil its obligations hereunder due to causes beyond its reasonable control that directly or indirectly delay or prevent its timely performance hereunder. Dates or times by which each party is required to render performance under the Agreement shall be postponed automatically to the extent that the party is delayed or prevented from meeting them by such causes.

13. Assignment

Neither party may assign the Agreement or otherwise transfer any rights or obligations under the Agreement except with the other party’s prior written consent (such consent not to be unreasonably withheld or delayed).

14. Anti-bribery and modern slavery

Both of us shall:

14.1 comply with all applicable laws and regulations relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010 (Relevant Requirements); and

14.2 have and shall maintain in place throughout the term of the Agreement its own policies and procedures, including but not limited to adequate procedures under the Bribery Act 2010, to ensure compliance with the Relevant Requirement

15. General

15.1 Variation: The Conditions and/or the Schedules may be updated by Us from time to time in writing.  Subject to the foregoing, no other variations to the Agreement shall be permitted unless agreed by Us in writing.

15.2 Waiver: If a party fails to or delays in exercising a right or remedy provided under the Agreement or by law, this does not mean that party has waived that right or remedy, and shall not be prevented or restricted from exercising that or any other right or remedy in future. 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.

15.3 Severance: If any provision or part-provision of the Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Agreement.

15.4 Entire Agreement: The Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

15.5 No Partnership or Agency: Nothing in the 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.

15.6 Non Solicitation: Without in any way restricting the right of an employee freely to accept employment and change employment, if either party induces an employee of the other party assigned to provide the Consultancy Services and/or assist in delivery of the Solution and/or the Hosting Platform at any time during the term of this Agreement or six (6) months thereafter then, unless otherwise agreed by both parties, the hiring party shall pay to the other party an amount being equivalent to twenty percent (20%) of the employee’s net annual salary such sum being a genuine pre-estimate of the cost of the disruption that such inducement would cause to the efficient conduct of the other party’s business.

16. Third party rights 

16.1 A Vendor of Third Party Software, and/or Sage shall be entitled to enforce Clause 9.3 as a third party beneficiary to the Agreement in accordance with the Contracts (Rights of Third Parties) Act 1999.

16.2 Except as expressly provided in Clause 1, a person who is not a party to the Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Agreement.

17. Notices

All notices made pursuant to the Agreement must be made in writing (which shall include a notice given by email to a valid email address). Any written notice shall be sent postage prepaid by registered or recorded mail or reputable courier service, addressed to the other party's address stated above (as amended by written notice from time to time) and shall be marked for the attention of “The Directors”. Unless otherwise provided in the Agreement, all notices shall be deemed as given on the day of their receipt by the receiving party.

18. Governing law and jurisdictions 

The 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 laws of England and Wales. 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 the Agreement or its subject matter or formation (including non-contractual disputes or claims).

2. Duration and Cancellation

No Multi-Year Contract

2.1 Where You have purchased Consultancy Services: (1) in connection with an Annual Contract; (2) separate from and in addition to Software, Subscriptions and/or Support and Maintenance Services purchased as part of a Multi-Year Contract; or (3) You have purchased Consultancy Services as a standalone service from Us, the Consultancy Services shall commence on the start date specified in the Proposal / Quotation or as otherwise agreed in writing by the parties in the Project Plan. 

Multi-Year Contract 

2.2 Unless terminated earlier in accordance with the Term and Termination clause of the Conditions, the Consultancy Services shall continue until they are completed unless You decide You wish to cancel the Consultancy Services early, in which case You may cancel the Consultancy Services by giving Us ten (10) Working Days’ notice in writing. You shall be liable to pay Our Consultancy Fees incurred up to the date of termination. This right to cancel the Consultancy Services shall not apply where the Consultancy Services are supplied as part of a Multi-Year Contract and/or where the fees for the Consultancy Services form part of the Subscription Fees (as detailed in the Proposal).

2.3 Where Consultancy Services are supplied as part of a Multi-Year Contract, the terms of paragraph 1 of Schedule 5 shall apply in relation to duration and cancellation. 

3. Consultancy services 

3.1 We shall, during the term of this Schedule, provide the Consultancy Services to You subject to the terms of this Schedule, the Conditions and any applicable Change Control.

3.2 Where applicable, the Consultancy Services shall be supplied in accordance with the Project Plan.

3.3 We use reasonable endeavours to meet any timings specified in the Project Plan for delivery of the Consultancy Services, but we do not guarantee that the Consultancy Services shall be supplied in accordance with any such timings.

3.4 We reserve the right to alter the scope of the Consultancy Services to be supplied if this is necessary to comply with any applicable law or regulatory requirement. However, if such alteration constitutes a material change to the scope of the Consultancy Services, We shall notify You of such alteration in advance.

3.5 If You wish to cancel or postpone provision of the Consultancy Services, We require You to give Us ten (10) Working Days’ notice before the date We start providing the relevant Consultancy Services, so We can reallocate any resources allocated to You. If You fail to give Us the required ten (10) Working Days’ notice We reserve the right to charge You for any resources allocated to You.

4. Acceptance 

4.1 Where applicable, promptly after the Solution (or part thereof) has been provided to You, You shall carry out such acceptance tests as You consider appropriate to verify that the Solution (or part thereof) meets Your requirements as set out in the Specification and/or Change Control (as applicable).

4.2 You will confirm to Us in writing once the Solution (or part thereof) has passed the acceptance tests, at which point You shall be deemed to have accepted the Solution (or relevant part thereof). Notwithstanding this, You will be deemed to have accepted the Solution (or part thereof) if:

4.2.1 You use the Solution (or part thereof) in Your operational environment;

4.2.2 the Solution (or part thereof) meets the acceptance criteria set out in the Specification and/or the Change Control or

4.2.3 You fail to carry out the acceptance tests promptly (being within 10 Working Days of Us making the Solution (or part thereof) available to You, or such other time period as is agreed in writing in the Project Plan).

4.3 If any part of the Solution materially fails to meet the requirements detailed in the Specification You shall notify Us in writing. We shall promptly endeavour to remedy the failure and resubmit the Solution (or part thereof) to You for acceptance testing.

4.4 If the Solution (or part thereof) again materially fails to meet the requirements detailed in the Specification again, You may:

4.4.1 require Us to correct the Solution (or part thereof) again and resubmit for acceptance testing; and

4.4.2 accept the Solution (or part thereof) subject to an adjustment in the Consultancy Fees as is appropriate given the nature of the failure.

5. Charges 

No Multi-Year Contract

5.1 Unless it has been agreed in the Proposal that the Consultancy Fees form part of the Subscription Fees or the Multi-Year Payment, the Consultancy Services shall be calculated on a time and materials basis based on our standard current rates, including any agreed overtime rates, in force from time to time. Any Consultancy Fees are based on the time We estimate is required to perform the Consultancy Services. 

5.2 If We need to change the time We have estimated is required to provide the Consultancy Services, We shall promptly notify You of this and the reasons for the adjustment as soon as possible through a Change Control or otherwise in writing. We shall not invoice You for any additional days until the additional Consultancy Fees have been approved through either a Change Control or otherwise by You in writing.

5.3 We shall invoice the Consultancy Fees (including any agreed additional days) plus Our reasonable travel and subsistence expenses incurred in delivering the Consultancy Services no more frequently than weekly in arrears.

5.4 We may increase Our rates from time to time.

5.5 The Consultancy Fees shall be invoiced and be payable in accordance with the Charges and Payment clause in the Conditions.

Multi-Year Contract

5.6 Where it has been agreed in writing in the Proposal or Quotation that the Consultancy Fees form part of the Multi-Year Payment, Your Multi-Year Payment shall be calculated, managed, invoiced and payable in accordance with paragraph 2 of Schedule 5. 

2. Subscription

2.1 In consideration of You paying the Subscription Fees and/or the Multi-Year Payment, as applicable, We shall grant to You, subject to paragraphs 2.2 and 2.3, a non-exclusive, non-transferable licence to use the Software made available to You on a Subscription basis, for Your own business purposes, for the term of the Subscription, or Multi-Year Contract, as applicable.

2.2 You agree that You:

2.2.1 will not sell assign, lease, rent, loan, transmit, network or otherwise distribute or make available the Software comprised in the Subscription(s) in any manner to third parties without Our prior written consent;

2.2.2 will use the Software comprised in the Subscription(s) for Your own business purposes only;

2.2.3 will take steps to keep the Software comprised in the Subscription(s) secure and safeguard it from theft or from access by unauthorised persons;

2.2.4 shall not (and shall not permit any third party to) reverse engineer, decompile or disassemble, the Software comprised in the Subscription(s) in order to compete with Us or in order to re-sell or offer the Software for commercial gain. Subject to the foregoing, You may (and may permit any third party to) maintain, update and use the Software comprised in the Subscription(s), for Your own business purposes and for the purpose of integrating the operation of the Software comprised in the Subscription(s) with other software or systems used by You; and

2.2.5 shall indemnify Us against any loss or damage We may suffer as a result of your breach of this paragraph 1.2.

2.3 Where We have arranged a Subscription for Third Party Software and/or Sage Software on Your behalf, You shall be granted a Subscription to use such Third Party Software subject to the relevant Vendor Terms and a Subscription to use such Sage Software subject to the relevant Sage Terms, which shall be made available to You on request. If there are no Vendor Terms applicable to any Third Party Software, then You shall be required to use such Third Party Software in accordance with the licence terms contained in the Agreement.

2.4 If You wish to cancel any Third Party Software comprised in Your Solution, You may do so by giving Us at least ninety (90) days’ notice in writing, and such cancellation shall take effect following expiry of such notice period, or at the start of the next Renewal Period, whichever is later. 

2.5 You will permit Us to have access to those records and computer systems and to use software audit tools on Your systems that may reasonably be required by Us to audit Your use of the Software comprised in the Subscription in order for Us to check that You are complying with the terms of the licence, the Agreement and the relevant Sage Terms and Vendor Terms. Such access shall be subject to any conditions or restrictions which You may reasonably place on it and shall occur during hours in which the relevant premises are normally available for such access.

3. Charges

Annual Contract

3.1 We shall invoice the Subscription Fee annually in advance.

3.2 Subject to paragraph 3.3, the Subscription Fees shall remain fixed for the initial subscription period, being twelve (12) months from the Renewal Date specified in the Proposal / Quotation, or such other period as both of us agree in writing (the “Initial Subscription Period”). After the Initial Subscription Period We may increase the Subscription Fee no more than once in any twelve (12) month period. We shall inform You around sixty (60) days prior to the next renewal date of any such increases. The increase in the Subscription Fees shall take effect on the next date of renewal.

3.3 If You wish to increase or decrease the number of Subscriptions You have, We shall increase or decrease the Subscription Fees by a proportionate amount. If the number of Subscriptions You have are to be increased, the Subscription Fee increase shall take effect at the time You increase the number of Subscriptions and the charges for such Subscriptions shall be agreed with You in writing. If You wish to decrease the number of Subscriptions You have, the decrease shall take effect at the end of the Initial Subscription Period or next Renewal Period, as applicable and the decrease shall be agreed with You in writing. If You wish to make any other changes in respect of Your Subscription for Our Fusion Software, We reserve the right to charge an administration fee in respect of such change, which shall be agreed with You in advance.

3.4 The Subscription Fees shall be invoiced and be payable in accordance with the Charges and Payment in the Conditions.

Multi-Year Contract

3.5 Where Your Multi-Year Contract includes the supply of Subscriptions, Your Multi-Year Payment shall be calculated, managed, invoiced and payable in accordance with paragraph 2 of Schedule 5. 

4. Charges 

Annual Contract

4.1 Where applicable, We shall invoice the Support Fee annually in advance. If You have taken a Subscription, Your Subscription shall include Support and Maintenance Services subject to you paying the Subscription Fees.

4.2 Where You pay Support Fees, if You increase or decrease the number of licences You have for the Solution, We may increase or decrease the Support Fees by a proportionate amount. If the Support Fees are to be increased, the increase shall take effect at the time You increase the number of licences. If the Support Fees are to be decreased, the decrease shall take effect at the end of the Initial Support Period or next Renewal Period (as defined below), as applicable.

4.3 Subject to paragraph 4.2, We may increase the Support Fees no more than once in any twelve (12) month period. We shall give You sixty (60) days’ notice of any such increase and such increase shall take effect at the start of the next Renewal Period.

4.4 The Support Fees shall be invoiced and be payable in accordance with the Charges and Payment clause in the Conditions.

Multi-Year Contract

4.5 Where Your Multi-Year Contract includes the supply of Support and Maintenance Services, Your Multi-Year Payment shall be calculated, managed, invoiced and payable in accordance with paragraph 2 of Schedule 5. 

Annex 1 – Service Level Agreement

1. Accessing the Support and Maintenance Services

You may contact the Support Desk as follows

• Portal: Details as contained in the Support Handbook
• E-Mail: Details as contained in the Support Handbook
• Telephone: Details as contained in the Support Handbook

You should attempt to resolve an Error prior to it being reported to Our helpdesk.

On contacting the support help desk, You will be requested to provide the following:

• Caller Name and Email Address
• Company Name
• Full Description of Error, including, where possible, examples of the Error so that, if necessary, We can recreate the Error. 

Our help desk adviser will work with You to triage the Error and establish the priority classification of each of Your support requests, in consultation with You.

2. Cases are prioritised as follows: 

3. Priorities are actioned as follows: 

4. Management of support requests

In order to fully diagnose the Error We may need to recreate it on a test system.

2. Charges

2.1 The Managed Services Fees shall be as set out in the applicable Proposal / Quotation / Change Control or as otherwise agreed in writing.

2.2 We shall invoice the Managed Services Fees in advance, as set out in the applicable Quotation.

2.3 We may increase the Managed Services Fees from time to time. We shall inform You around sixty (60) days prior to the next renewal date of any such increases. The increase in the Managed Services Fees shall take effect on the next date of renewal. To avoid any doubt, this paragraph shall not apply where You purchase additional Managed Services. In such instances We shall agree the increased costs of such additional Managed Services, including when they are payable, with You in writing.

2.4 The Managed Services Fees shall be invoiced and be payable in accordance with the Charges and Payment clause in the Conditions.

1. Duration and Cancellation

1.1 Your Multi-Year Contract which shall commence on the Renewal Date. Where: 

1.1.1 You have purchased Consultancy Services, Subscriptions and/or Support and Maintenance Services as part of Your Multi-Year Contract, supply shall commence on the Renewal Date. 

1.1.2 You have purchased Support and Maintenance Services only as part of Your Multi-Year Contract, supply of the Support and Maintenance Services shall commence on the Renewal Date unless otherwise agreed in writing between us.

1.2 Unless terminated earlier in accordance with the Term and Termination clause of the Conditions, the Multi-Year Contract shall continue for the Initial Multi-Year Period. Thereafter Your Multi-Year Contract shall automatically renew for the same duration as the Initial Multi-Year Period (each a “Renewal Period”). If You wish to end Your Multi-Year Contract, You can do so by giving Us at least seventy-five (75) days’ notice in writing, such notice to take effect on expiry of the Initial Multi-Year Period or Renewal Period, as applicable.  If You wish to cancel Your Multi-Year Contract before expiry of the Initial Multi-Year Period or Renewal Period, You shall be required to pay all Multi-Year Payments for the remainder of the Initial Multi-Year Period or Renewal period, as applicable.

1.3 We may terminate Your Multi-Year Contract by giving You at least ninety (90) days’ notice in writing, but such notice may not take effect until expiry of the Initial Multi-Year Period or Renewal Period, as applicable. 

2. Charges

2.1 Where You have purchased a Multi-Year Contract, the sums You shall be charged, as detailed in the Proposal/Quotation, will cover payment of the Consultancy Fees, Support Fees and/or Subscription Fees (as applicable) (the “Multi-Year Payment”).  The Multi-Year Payment amount and frequency of payment shall be detailed in the Proposal/Quotation. 

2.2 The Multi-Year Payment is calculated based on reasonable Our assessment of Your anticipated usage of the Consultancy Services and/or Support and Maintenance Services during the Initial Multi-Year Period.  If Your use of the Consultancy Services and/or Support Services exceeds Our assessment of Your anticipated usage, then We reserve the right, acting reasonably, to increase the Multi-Year Payment. 

2.3 Subject to paragraph 2.2 above, the Multi-Year Payment shall be fixed for the Initial Multi-Year Period, except for the following:

2.3.1 where the Solution You have purchased from Us includes Third Party Software, if the vendor of the relevant Third Party Software increases their fees, then We will increase the Multi-Year Payment by a proportionate amount by giving You thirty (30) days’ notice in writing. Such increase shall take effect on the date of Your next Multi-Year Payment.  

2.3.2 Where Your Multi-Year Contract includes the supply of Subscription, if You wish to increase the number of Subscriptions You have, We shall increase the Multi-Year Payment by a proportionate amount. Such increase shall take effect at the time You increase the number of Subscriptions, and the charges for such Subscriptions shall be agreed with You in writing. If You wish to decrease the number of Subscriptions You have, the decrease may only take effect following expiry of the Initial Multi-Year Period or Renewal Period (as applicable) and You shall be required to give Us no less than one-hundred and twenty (120) days’ notice before expiry of the Initial Multi-Year Period or Renewal Period (as applicable) of any requested reduction. If applicable, should You wish to make any other changes in respect of Your Subscription for Our Fusion Software, We reserve the right to charge an administration fee in respect of such change, which shall be agreed with You in advance. Any changes to the number of Subscriptions will be managed through Change Control. 

2.4 After the Initial Multi-Year Period and any Renewal Period We may increase the Multi-Year Payment. We shall inform You around ninety (90) days prior to the next renewal date of any such increases. The increase in the Multi-Year Payment shall take effect on the next date of renewal.

2. Rights to use the bespoke software

2.1 Upon payment by You of the Development Services Fees for the relevant Bespoke Software, We shall grant You a limited, non-exclusive, royalty free, licence to use such Bespoke Software for Your business purposes for the duration of this Agreement.

2.2 You agree that You:

2.2.1 will not sell assign, lease, rent, loan, transmit, network or otherwise distribute or make available the Bespoke Software in any manner to third parties without Our prior written consent;

2.2.2 will use the Bespoke Software for Your own business purposes only;

2.2.3 will take steps to keep the Bespoke Software secure and safeguard it from theft or from access by unauthorised persons;

2.2.4 shall not (and shall not permit any third party to) reverse engineer, decompile or disassemble, the Bespoke Software in order to compete with Us or in order to re-sell or offer the Bespoke Software for commercial gain; and

2.2.5 shall indemnify Us against any loss or damage We may suffer as a result of your breach of this paragraph 2.

3. Charges 

3.1 We will work with You prior to commencing the Development Services to agree the scope of the Development Services and the estimated Development Services Fees. If a scoping phase is not required the Development Services Fees shall be as specified in the applicable Proposal / Quotation.

3.2 If the time We have estimated is needed to provide the Development Services changes, We shall promptly notify You of this and the reasons for the adjustment as soon as possible through a Change Control or otherwise in writing. We shall not invoice You for any additional days until the additional Development Services Fees have been approved through either a Change Control or otherwise by You in writing

3.3 The Development Services Fees shall be invoiced and be payable in accordance with the Charges and Payment clause in the Conditions.

2. Hosting services

2.1 In consideration of You paying the Hosting Fees, We shall provide the Hosting Services to You, including making the Hosting Platform available to You through Datel Advansys, subject to the Conditions and this Schedule.

2.2 We confirm that We have the necessary permissions and consents in place to make the Hosting Services, including the Hosting Platform, available to You.

2.3 You may not resell the Hosting Services and/or the Hosting Platform and You may not allow anyone who does not work for You to use the Hosting Services, including, but not limited to, the Hosting Platform (unless We have approved such individual’s use of the Hosting Services and Hosting Platform with You in writing).

2.4 Where We procure that Datel Advansys provide Third Party Software to You as part of the Hosting Services, the provisions of Schedule 2 shall apply in respect of such Third Party Software.

2.5 We shall agree with You a pre-authorised amount to cover any time Datel Advansys, on Our behalf, need to carry out minor changes to the Hosting Platform and/or Hosting Services, following a request made by You. Where We, acting through Datel Advansys, reasonably believe We may exceed such pre-authorised amount, We shall notify You in advance and seek Your approval to any further expenditure. This only applies in respect of minor changes. More significant Changes will be managed in accordance with clause 5 of the Conditions.

3. Our obligations

In addition to Our commitments and obligations contained in the Agreement, and in paragraph 2 above, We shall procure that Datel Advansys maintains appropriate security measures in order to safeguard the Hosting Platform, as detailed in the Proposal.

4. Your obligations

4.1 You shall co-operate with Us and/or Datel Advansys, and provide Us and/or Datel Advansys with any information reasonably required in order to perform the Hosting Services, including granting the correct approvals and permissions so Datel Advansys (on Our behalf) can provide the Hosting Services and make the Hosting Platform available to You. You acknowledge that if such approvals are not granted, We (acting through Datel Advansys) may be unable to provide the Hosting Services and/or make the Hosting Platform available to You and We (and Datel Advansys) will not be liable to You for any losses You suffer as a result.

4.2 You shall:

4.2.1 comply with the Vendor Terms relevant to any Third Party Software provided to You as part of the Hosting Services, and You agree to indemnify Us against any losses, damages, fine or penalties We and/or Datel Advansys suffer or incur arising out of or in connection to Your breach of the Vendor Terms;

4.2.2 maintain and secure Your network connections and telecommunications links to enable the Hosting Services to be supplied on a remote basis; and

4.2.3 ensure that the details of suitable contacts are supplied and maintained so that Datel Advansys can escalate any important issues relating to the Hosting Services and/or the Hosting Platform.

4.3 If We identify, or We are notified that You have failed to comply with the Vendor Terms applicable to any Third Party Software, or We believe You are in breach of Your obligations in this paragraph 4, then We, acting through Datel Advansys, reserve the right to suspend Your access to the Hosting Platform and/or the Hosting Services. Such suspension shall continue until such time as We reasonably believe that the circumstances giving rise to the initial suspension have been resolved.

4.4 If We, acting through Datel Advansys, become aware of a suspected security vulnerability, Datel Advansys shall make You aware and advise You of the remedial action We (through Datel Advansys) propose is taken to address the vulnerability. This may include (without limitation) suspending Your access to the Hosting Platform and/or Hosting Services for a limited period. We shall agree with You the remedial action to be taken and We (acting through Datel Advansys) shall work with You to minimise the impact of the issue on the Hosting Services and/or Hosting Platform.

4.5 You shall notify Datel Advansys if You add or remove users to the Hosting Platform, or the users of any Third Party Software supplied as part of the Hosting Platform, so that We can ensure the correct charges are paid in respect of such users.

4.6 You will permit Us or Our authorised representatives, to have access to those records and computer systems and to use software audit tools on Your systems that may reasonably be required by Us to audit Your use of the Third Party Software provided as part of the Hosting Services, so that We can check that You are complying with the terms of this Agreement and the relevant Vendor Terms, and also so that We can check You have the correct licences in place. Such access shall be subject to any conditions or restrictions which You may reasonably place on it and shall occur during hours in which the relevant premises are normally available for such access.

4.7 If We and/or Our authorised representatives discover, pursuant to any audit carried out under paragraph 4.6. above, or as a result of any Third Party Software vendor carrying out an independent audit on Us or Datel Advansys, that You have not disclosed the correct number of licences you have in place in respect of such Third Party Software, We shall invoice You for any shortfall in the charges You have paid and You shall indemnify Us and/or Datel Advansys (as We may direct) against any losses or charges We and/or Datel Advansys suffer or incur as a result of You underpaying such charges.

4.8 When using the Hosting Services and the Hosting Platform, You shall comply with and procure that Your personnel who use the Hosting Services and/or access the Hosting Platform comply with the provisions of Datel Advansys’ Acceptable and Fair Use Policy, a copy of which is available by following this link.

4.9 You shall not introduce or allow to be introduced onto the Hosting Platform any computer viruses (including trojan horses, worms, software bombs or similar items) or in any way destroy, damage or corrupt any software or data on the Hosting Platform and You shall indemnify Us and Datel Advansys against any losses We or they suffer or incur as a result of Your breach of this paragraph.

5. Service availability

5.1 Datel Advansys, on Our behalf, shall endeavour to make the Hosting Platform (excluding any test platforms and/or systems) available 24 hours a day, seven days a week.

5.2 The service availability target (the “Service Availability Target”) for the Hosting Platform (excluding any test platforms and/or systems) is 99.5%, measured in each Quarter, and is calculated as follows:

Service availability percentage = (A divided by B) multiplied by 100 where:

A = the number of Contracted Hours in the relevant Quarter where the Hosting Platform is available for connection by Your users, but excluding any period where the relevant Hosting Platform is unavailable due to an Excluded Event;

B = the number of Contracted Hours in the relevant Quarter;

Example: Where A=640 and B=650, percentage availability is calculated as follows: (640/650) x 100 = 98.46%

6. Notification of issues and service credits

6.1 We shall procure that Datel Advansys will use reasonable endeavours to respond to incidents notified to it, either by automated monitoring or directly logged by You in accordance with the following standards:

6.2 If the availability of the Hosting Platform falls below the Service Availability Target, You shall be entitled to service credits, which shall be Your sole financial remedy in this respect. You shall be entitled to be credited with a sum equivalent to one week’s Hosting Service Fees (excluding any fees payable in respect of test platforms and /or systems) for the Quarter (“Service Credit”). To claim a Service Credit You must submit a written claim for such Service Credit within thirty (30) days of the end of the relevant Quarter. If You fail to claim the Service Credit in this period then no Service Credit shall be paid. Any Service Credits due to You shall accumulate annually. At renewal, the accumulated Service Credits shall be deducted from the annual Hosting Fees payable for the forthcoming Renewal Period. Where the Hosting Services are cancelled in accordance with paragraph 8, the parties shall agree, acting reasonably, how any accumulated Service Credits will be paid to You.

6.3 We reserve the right to charge, at Our rates in force from time to time, for rectifying any problem with the Hosting Services or the Hosting Platform:

a) if any attempt is made, other than by Us or Datel Advansys, to remove any defects or deal with any errors in the Hosting Services or the Hosting Platform; or

b) where, in the reasonable opinion of Us and/or Datel Advansys, You have caused the service availability issue, for example the service availability failure has been caused by a firewall controlled by You which has impacted the Hosting Platform and/or Hosting Services;

c) remedial work resulting from loss of data or corruption of data including but not limited to viruses where it can be demonstrated that these resulted from Your activities or the activities of a third party who is not engaged or managed by Us or Datel Advansys.

6.4 Where an issue affecting the Hosting Platform relates to Third Party Software which Datel Advansys has supplied to You on Our behalf pursuant to this Schedule, Datel Advansys, on Our behalf, shall liaise with the relevant Third Party Software vendor to rectify the issue. Our liability in respect of the issue shall be limited to any sums and/or service credits We and/or Datel Advansys recover from such Third Party Software vendor, relating to the issue with Your Third Party Software.

7. Charges and payment

7.1 We shall invoice the Hosting Fees annually in advance and the first invoice shall be issued before the Hosting Services Start Date.

7.2 Subject to paragraph 7.3, We may increase the Hosting Fees no more than once in any twelve (12) month period following expiry of the Hosting Services Initial Period. We shall give You sixty (60) days’ notice of any such increase.

7.3 We reserve the right to increase the Hosting Fees if Our costs increase due to any pricing increases imposed on Us by a Third Party Software vendor. We shall give You thirty (30) days’ notice of any such increase.

7.4 The Hosting Fees shall be invoiced and be payable in accordance with the Charges and Payment clause in the Conditions.

7.5 You shall be entitled to make a Change to the Hosting Platform (by following the process outlined in clause 5 of the Conditions) and such Change shall take effect on the first day of the month in which We, on behalf of Datel Advansys, agree such Change provided that such Change is for a minimum of one month and under no circumstances shall the Hosting Fees payable following such Change fall below 90% of the initial fees specified in the original Proposal.

8. Duration and Cancellation

8.1 The Hosting Services shall continue for the Hosting Services Initial Period. Thereafter the Hosting Services shall renew annually for periods of twelve (12) months or such longer period as both of us may agree in writing (each a “Renewal Period”). If You wish to cancel Your Hosting Services, You can do so by giving Us forty-five (45) days’ notice in writing. However, if You cancel Your Hosting Services by giving Us notice in writing under this paragraph, then You shall be required to pay the Hosting Fees for the remainder of the Hosting Services Initial Period or Renewal Period (as applicable). This shall not apply where You terminate the Agreement due to Our breach or insolvency, in accordance with the Conditions.

8.2 We may terminate Your Hosting Services by giving You ninety (90) days’ notice in writing, but such notice may not take effect until expiry of the Hosting Services Initial Period or Renewal Period, as applicable.

8.3 On termination of the Agreement, and/or on cancellation of the Hosting Services in accordance with this Schedule, Your rights to use the Hosting Services and the Hosting Platform shall cease, and Datel Advansys (on Our behalf) shall cease providing the Hosting Services, including the Hosting Platform, to You.