This Agreement outlines the basis upon which Business Solutions in the Cloud Limited provides technical consultancy services, software development services and hosted app services.

1. Definitions

1.1      In the Agreement:

“Agreement” means the agreement set out here along with one or more Statements of Work, and any amendments to that agreement from time to time;

“BSITC” means Business Solutions in the Cloud Limited, a company registered in England and Wales under registration number 07638976, and our registered office is at 71-75 Shelton Street, Covent Garden, London, England, WC2H 9JQ.

“BSITC Confidential Information” means:

(a)      any information disclosed by or on behalf of BSITC to the Customer during the Term (whether disclosed in writing, orally or otherwise) that at the time of disclosure was marked as “confidential” or should have been understood by the Customer (acting reasonably) to be confidential; and

(b)      the financial terms of the Agreement;

“Business Day” means any weekday other than a bank or public holiday in England;

“Change” means any change to any Specification or the scope of the Services;

“Charges” means:

(a)      the charges specified in a Statement of Work; and

(b)      such other charges as may be specified elsewhere in the Agreement or otherwise agreed in writing by the parties from time to time;

“Confidential Information” means the BSITC Confidential Information and the Customer Confidential Information;

“Customer” means the person, natural or legal, identified as such in the applicable Statement of Work;

“Customer Confidential Information” means:

(a)      any information disclosed by or on behalf of the Customer to BSITC during the Term (whether disclosed in writing, orally or otherwise) that at the time of disclosure was marked as “confidential” or should have been understood by BSITC (acting reasonably) to be confidential; and

(b)      the Customer Personal Data;

“Customer Materials” means all works and materials supplied by or on behalf of the Customer to BSITC for incorporation into or integration with the Deliverables, or for use in connection with the Services;

“Customer Personal Data” means any Personal Data that is processed by BSITC on behalf of the Customer in relation to the Agreement;

“Data Protection Laws” means all applicable laws relating to the processing of Personal Data including, while they are in force and applicable, the United Kingdom’s Data Protection Act 2018 and the General Data Protection Regulation (Regulation (EU) 2016/679);

“Defect” means a defect, error or bug in any software having a material adverse effect on the functionality or performance of that software, but excluding any defect, error or bug caused by or arising as a result of:

(a)      a failure of the Customer to perform or observe any of its obligations in the Agreement; and/or

(b)      an incompatibility between that software and any other system, network, application, program, hardware or software not specified as compatible in the relevant Specification;

“Deliverables” means deliverables identified in a Statement of Work, which may be Consultancy Deliverables under Clause 4 or Development Deliverables under Clause 5;

“Effective Date” means the date of execution of the first Statement of Work (or such other date as the parties may agree in writing);

“Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected;

“Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these “intellectual property rights” include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models and rights in designs);

“LCIA Rules” means the rules of the London Court of International Arbitration established at 70 Fleet Street, London EC4Y 1EU;

“Personal Data” has the meaning given to it in the Data Protection Laws applicable in the United Kingdom from time to time;

“Services” means any services that BSITC provides to the Customer, or has an obligation to provide to the Customer, under the Agreement;

“SLA” means the service level agreement set out in the Schedule to the Agreement;

“Specification” means the technical specification for Deliverables set out or referred to in the applicable Statement of Work, as it may be supplemented or varied in accordance with Clause 11;

“Statement of Work” means a written statement of work agreed by or on behalf of each of the parties that sets out the specific obligations of the parties under the Agreement;

“Support Services” means the provision of support and assistance to the Customer in relation to errors in and use of the Services provided by BSITC under Clause 5 and/or 6, as described in more detail in the SLA;

“Term” means the term of the Agreement, commencing in accordance with Clause 2.1 and ending in accordance with Clause 2.2; and

“Third Party Materials” means any works and/or materials comprised in Deliverables (excluding the Customer Materials) the Intellectual Property Rights in which are owned by a third party.

2. Term

2.1      The Agreement shall come into force upon the Effective Date.

2.2      The Agreement shall continue in force indefinitely, subject to termination in accordance with Clause 20 or any other provision of the Agreement.

3. Statements of Work

3.1      From time to time during the Term, the parties may negotiate and agree additional Statements of Work setting out the particulars of the Services and related matters.

3.2      Each Statement of Work must be signed by or on behalf of each party.

3.3      Each Statement of Work and the Services thereunder shall be cancelled automatically upon the termination of the Agreement; however, the cancellation of a Statement of Work and the Services thereunder will not itself constitute the termination of the Agreement or the cancellation of any other Statement of Work.

4. Consultancy Services

4.1      This Clause 4 shall apply to any Consultancy Services specified in an applicable Statement of Work; and‌ BSITC shall provide such Consultancy Services to the Customer in accordance with this Clause 4.

4.2      In this Clause 4:

“Consultancy Deliverables” means any and all deliverables (which may include technical design documentation, technical specifications, software and/or training materials) that BSITC has an obligation to deliver to the Customer in the course of the provision of Consultancy Services under a Statement of Work; and

“Consultancy Services” means the technical consultancy services and/or training services specified in the applicable Statement of Work.

4.3      BSITC shall use reasonable endeavours to ensure that the Consultancy Deliverables are delivered to the Customer in accordance with any timetable for delivery set out in the applicable Statement of Work.

4.4      Unless the applicable Statement of Work provides otherwise, BSITC hereby grants to the Customer a worldwide, non-exclusive and non-expiring licence to copy, store, edit and use the Consultancy Deliverables (excluding the Customer Materials and the Third Party Materials) for the purposes specified in the applicable Statement of Work or, if no particular purposes are specified therein, then for the internal business purposes of the Customer. This licence shall take effect with respect to particular Consultancy Deliverables upon the delivery of those Consultancy Deliverables to the Customer.

4.5      BSITC may issue invoices for the Charges with respect to Consultancy Services at any time after the performance of the corresponding Consultancy Services; typically, invoices will be issued on a weekly or monthly basis.

4.6      Save to the extent that the applicable Statement of Work provides otherwise, the Consultancy Services under a Statement of Work may be cancelled by either party giving to the other not less than 30 days’ prior written notice of such cancellation. In addition, Consultancy Services may be cancelled in accordance with the express provisions of the applicable Statement of Work.

5. Development Services

5.1      This Clause 5 shall apply to any Development Services specified in an applicable Statement of Work; and‌ BSITC shall provide such Development Services to the Customer in accordance with this Clause 5.

5.2      In this Clause 5:

“Development Deliverables” means any and all deliverables (which may include software and documentation for software) that BSITC has an obligation to deliver to the Customer in the course of the provision of Development Services under a Statement of Work; and

“Development Services” means the design and development of the Development Deliverables by BSITC in accordance with an applicable Statement of Work.

5.3      BSITC shall use reasonable endeavours to ensure that the Development Services are provided in accordance with the timetable set out in the applicable Statement of Work.

5.4      Unless the Development Deliverables consist of the software used to provide Hosted App Services under Clause 6, BSITC shall ensure that:

(a)      a copy of the Development Deliverables is delivered to the Customer by means of a secure online file sharing system; and

(b)      the source code and any interpreted code comprised in the Development Deliverables created by or on behalf of BSITC during the provision of the Development Services is written to a professional standard, conforms with any coding standards document agreed between the parties, and incorporates sufficient commentary to enable a competent third party developer to understand, adapt, maintain and update the code.

5.5      BSITC shall keep the Customer reasonably informed of the progress of the Development Services; in particular BSITC shall inform the Customer of any substantial obstacles or likely delays in the performance of the Development Services.

5.6      If the Development Deliverables consist of software used to provide Hosted App Services under Clause 6, then the Customer’s rights to use those Development Deliverables shall be as set out in Clause 6.

5.7      If the Development Deliverables do not consist of software used to provide Hosted App Services under Clause 6, the Customer’s rights to use the Development Deliverables shall be as specified in the applicable Statement of Work.

5.8      For the avoidance of doubt, BSITC will have no obligation to update or maintain Development Deliverables except to the extent agreed in a Statement of Work. In particular, if Development Deliverables are designed to be compatible with a particular version of a third party application programming interface, then the parties must use the Change procedure to agree any updates to the Development Deliverables required as a result of changes to that application programming interface.

5.9      Subject to any express provisions of the applicable Statement of Work to the contrary, BSITC may issue invoices for the Charges with respect to Development Services as follows:

(a)      50% of those Charges may be invoiced at any time following the coming into force of the applicable Statement of Work; and

(b)      50% of those Charges may be invoiced on the deemed acceptance of the relevant Development Deliverables in accordance with Clause 7.9.

5.10    Save to the extent that the applicable Statement of Work provides otherwise and subject to Clause 20, Development Services may only be cancelled by the written agreement of both parties.

6. Hosted App Services

6.1      This Clause 6 shall apply to any Hosted App Services specified in an applicable Statement of Work; and‌ BSITC shall provide such Hosted Services to the Customer in accordance with this Clause 6.

6.2      ‌In this Clause 6:

“Access Credentials” means access keys and other credentials enabling access to the Hosted App Services;

“Hosted App Services” means the provision of connector software as a hosted service, enabling the exchange of data between the Customer’s systems and Third Party Services, as more particularly specified in the applicable Statement of Work;

“Hosted App Services Period” means the recurring period with respect to which Charges for the Hosted App Services will be paid as specified in the applicable Statement of Work (or, if no such period is specified therein, a period of 12 months), starting:

(a)      on the date of deemed acceptance of the Development Deliverables (as defined in Clause 5) for the Hosted App Services in accordance with Clause 7.9, or such other date as may be specified in the applicable Statement of Work; or

(b)      at the end of a previous Hosted App Services Period;

“Platform” means the platform managed by BSITC and used by BSITC to provide the Hosted App Services, including the application and database software for the Hosted App Services, the system and server software used to provide the Hosted App Services, and the computer hardware on which that application, database, system and server software is installed; and

“Third Party Services” means those software-based services provided by any third party that are or may be integrated with the Hosted App Services by BSITC from time to time in accordance with an applicable Statement of Work.

6.3      BSITC shall ensure that the Platform will, upon or before the start of the first Hosted App Services Period, provide to the Customer the Access Credentials necessary to enable the Customer to access and use the Hosted App Services.

6.4      BSITC hereby grants to the Customer a worldwide, non-exclusive licence to use the Hosted App Services for the purpose of transferring data between the Customer’s systems and the Third Party Services for the internal business purposes of the Customer from the start of the Hosted App Services Period until the date of cancellation of the applicable Statement of Work.

6.5      Except to the extent expressly permitted in the Agreement or required by law on a non-excludable basis, the licence granted by BSITC to the Customer under Clause 6.4 is subject to the following prohibitions:

(a)      the Customer must not sub-license its right to access and use the Hosted App Services;

(b)      the Customer must not permit any unauthorised person or application to access or use the Hosted App Services; and

(c)      the Customer must not conduct or request that any other person conduct any load testing or penetration testing on the Platform or Hosted App Services without the prior written consent of BSITC.

6.6      The Customer shall implement and maintain reasonable security measures relating to the Access Credentials to ensure that no unauthorised person or application may gain access to the Hosted App Services by means of the Access Credentials.

6.7      The Customer must not use the Hosted App Services in any way that causes, or may cause, damage to the Hosted App Services or Platform; and the Customer must not use the Hosted App Services in any way that is unlawful, illegal, fraudulent or harmful, or in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.

6.8      The Hosted App Services are integrated with Third Party Services. The supply of those Third Party Services shall be under a separate contract or arrangement between the Customer and the relevant third party. BSITC does not contract to supply the Third Party Services and is not a party to any contract for, or otherwise responsible in respect of, the provision of any Third Party Services. Fees may be payable by the Customer to the relevant third party in respect of the use of Third Party Services. The Customer shall be responsible for procuring any co-operation and assistance from any Third Party Services provider that is reasonably requested by BSITC in relation to the Hosted App Services.

6.9      The Customer acknowledges and agrees that:

(a)      the use of Third Party Services with respect to the Hosted App Services account of the Customer may result in the transfer of Customer Data and/or Customer Personal Data from the Hosted App Services to the relevant Third Party Services and vice versa;

(b)      BSITC has no control over, or responsibility for, any disclosure, modification, deletion or other use of Customer Data and/or Customer Personal Data by any provider of Third Party Services;

(c)      the Customer must ensure that it has in place the necessary contractual safeguards to ensure that the transfer of Customer Personal Data to, and use of Customer Personal Data by, a provider of Third Party Services is lawful; and

(d)      the Customer shall ensure that the transfer of Customer Data to a provider of Third Party Services does not infringe any person’s Intellectual Property Rights or other legal rights and will not put BSITC in breach of any applicable laws.

6.10    Subject to Clause 18.1:

(a)      BSITC gives no guarantees, warranties or representations in respect of any Third Party Services; and

(b)      BSITC shall not be liable to the Customer in respect of any loss or damage that may be caused by Third Party Services or any provider of Third Party Services.

6.11    The availability of the Hosted App Services shall be governed by the SLA.

6.12    BSITC may make modifications to the Hosted App Services from time to time and will notify the Customer in writing of any material modifications. In the event of a modification that has a material, adverse impact on the Customer’s ability to use the Hosted App Services, the Customer shall be entitled, as its exclusive remedy, to cancel the affected Hosted App Services on 7 days’ written notice to BSITC, and to receive a pro rata refund of the Charges pre-paid to with respect to the cancelled Hosted App Services.

6.13    The Customer acknowledges that the successful deployment and continued operation of the Hosted App Services is contingent on the Customer complying with dependencies set out in the Statement of Work or specified by BSITC acting reasonably from time to time.

6.14    For the avoidance of doubt, BSITC will have no obligation to update the Hosted App Services except to the extent agreed in a Statement of Work. In particular, if the Hosted App are designed to be compatible with a particular version of a third party application programming interface, then the parties must use the Change procedure to agree any updates to the Hosted App required as a result of changes to that application programming interface.

6.15    The Charges for the Hosted App Services shall be invoiced by BSITC annually in advance of each Hosted App Services Period, subject to the express provisions of the applicable Statement of Work.

6.16    The Hosted App Services under a Statement of Work may be cancelled at the end of any Hosted App Services Period by either party giving to the other not less than 60 days’ prior written notice of such cancellation. In addition, Hosted App Services may be cancelled in accordance with the express provisions of the applicable Statement of Work.

7. Acceptance procedure

7.1      ‌This Clause 7 applies in relation to all Development Deliverables, along with those Consultancy Deliverables that the applicable Statement of Work specifies shall be subject to user acceptance testing.

7.2      In this Clause 7:

“Acceptance Criteria” means:

(a)      the Deliverables conforming in all material respects with the relevant Specification; and

(b)      the Deliverables being free from Defects; and

“Acceptance Tests” means a set of tests designed to establish whether the Deliverables meet the Acceptance Criteria, providing that the exact form of the tests shall be determined and documented by BSITC acting reasonably, and communicated to the Customer in advance of the commencement of the first Acceptance Period.

7.3      BSITC shall carry out its own reasonable internal tests to ensure the Deliverables are in operable condition and capable of meeting the requirements set out in the Statement of Work before submitting the Deliverables to the Customer for testing in accordance with this Clause 7.

7.4      BSITC shall use reasonable endeavours to provide the Customer with the Deliverables no later than the delivery date specified in the applicable Statement of Work.

7.5      Following the Customer’s receipt of the Deliverables, the Customer shall promptly (and in any event within 30 days of delivery of the Deliverables or such alternative period as may be specified in the applicable Statement of Work) carry out the Acceptance Tests. The Customer shall give BSITC at least 24 hours’ notice of the start of the Acceptance Tests and permit BSITC to observe all or any part of the testing.

7.6      If the Deliverables pass the Acceptance Tests, the Customer shall within the testing period referred to in Clause 7.5 notify BSITC of this by signing the Acceptance Test document produced by BSITC (thereby accepting the Deliverables).

7.7      If the Customer notifies BSITC during the testing period referred to in Clause 7.5 that the Deliverables have failed to pass the Acceptance Tests, setting out detailed information about that failure, then BSITC shall remedy such failure, provide the Customer with the revised Deliverables, and the relevant test(s) shall be repeated within a reasonable time.

7.8      If the Deliverables fail in some material respect to pass the Acceptance Tests within 5 Business Days from the date of its second submission to the Acceptance Tests, then the Customer may require: (i) a repeat test; or (ii) implementation of the Deliverables (or their removal from the scope of the Services) subject to such changes to the Statement of Work (and the Charges) as, after taking into account all the relevant circumstances, are reasonable.

7.9      Acceptance of the Deliverables shall be deemed to have occurred on whichever is the earliest of:

(a)      the notification by the Customer under Clause 7.6 that the Deliverables have passed the Acceptance Tests;

(b)      the expiry of the testing period in Clause 7.5 above without the Customer both: (i) notifying BSITC under Clause 7.7 that the Deliverables have failed to pass the Acceptance Tests; and (ii) providing to BSITC the detailed information required by Clause 7.7;

(c)      the sending of a notification by the Customer to BSITC that the Deliverables have not passed the Acceptance Tests, when a reasonable expert would consider that the Deliverables do pass the Acceptance Tests; and

(d)      the use of the Deliverables by the Customer on a live basis or in the normal course of the Customer’s or any third party’s business.

7.10    If BSITC’s right to invoice for any Charges is conditional upon acceptance of Deliverables, then:

(a)      deemed acceptance in accordance with any of provisions of Clause 7.9 shall satisfy that condition; and

(b)      if the only failures to pass the Acceptance Tests are minor failures that do not have a material negative effect upon the utility of the Deliverables to the Customer, BSITC may in its discretion invoice for those Charges.

7.11    Each party must act reasonably and co-operate with the other in relation to the performance of each party’s obligations under this Clause 7.

8. Support Services

8.1      BSITC shall provide Support Services to the Customer on the following bases:

(a)      where BSITC is providing Hosted App Services to the Customer under Clause 6, then the Support Services shall be provided with respect to those Hosted App Services in consideration for the recurring charges specified in the applicable Statement of Work for the Hosted App Services; and

(b)      otherwise, Support Services shall be provided on the basis of BSITC’s standard time-based rates for Charges.

8.2      Where BSITC provides Support Services to the Customer, those Support Services must be provided with reasonable skill and care and in accordance with the SLA.

9. Intellectual Property Rights

9.1      Except to the extent expressly provided otherwise in the Agreement:

(a)      nothing in the Agreement grants any right, title, or interest in or to (including any licence under) any Intellectual Property Rights in or relating to, the Services or Deliverables, whether by implication, estoppel, or otherwise; and

(b)      all right, title, and interest in and to the Services and the Deliverables shall remain with BSITC.

9.2      Subject to any express written agreement between the parties, BSITC shall ensure that the Third Party Materials are:

(a)      licensed to the Customer in accordance with the relevant licensor’s standard licensing terms (which the Customer acknowledges may be open source or Creative Commons licensing terms); or

(b)      licensed to the Customer on reasonable terms notified by BSITC to the Customer.

10. Customer obligations

10.1    The Customer must provide to BSITC, or procure for BSITC, such:

(a)      co-operation (including co-operation from any design agency appointed by the Customer to provide services relating to Deliverables), support and advice;

(b)      information and documentation; and

(c)      governmental, legal and regulatory licences, consents and permits,

          as are reasonably necessary to enable BSITC to perform its obligations under the Agreement.

10.2    The Customer must ensure that, at all times during the Term, the Customer maintains personnel with sufficient expertise and experience in the subject matter of the Agreement to enable the Customer to comply with Clause 10.1.

10.3    The Customer must promptly, following receipt of a written request from BSITC to do so, provide written feedback to BSITC concerning BSITC’s proposals, plans, designs and/or preparatory materials relating to Deliverables and made available to the Customer with that written request.

10.4    The Customer must provide to BSITC, or procure for BSITC, such access to the Customer’s computer hardware, software, networks and systems as may be reasonably required by BSITC to enable BSITC to perform its obligations under the Agreement.

10.5    The Customer must supply to BSITC the Customer Materials specified in a Statement of Work, or reasonably requested by BSITC in connection with the performance of the Services, in accordance with the timetable specified in a Statement of Work.

10.6    The Customer hereby grants to BSITC a non-exclusive licence to copy, reproduce, store, distribute, publish, export, adapt, edit and translate the Customer Materials to the extent reasonably required for the performance of BSITC’s obligations and the exercise of BSITC’s rights under the Agreement, together with the right to sub-license these rights to the extent reasonably required for the performance of BSITC’s obligations and the exercise of BSITC’s rights under the Agreement.

10.7    The Customer warrants to BSITC that the Customer Materials when used by BSITC in accordance with the Agreement will not infringe the Intellectual Property Rights or other legal rights of any person, and will not breach the provisions of any law, statute or regulation.

10.8    The Customer acknowledges that a delay in the Customer performing its obligations under the Agreement may result in a delay in the performance of the Services; and subject to Clause 18.1 BSITC will not be liable to the Customer in respect of any failure to meet any Services timetable to the extent that that failure arises out of a delay in the Customer performing its obligations under the Agreement.

11. Change control

11.1    The provisions of this Clause 11 apply to each Change requested by a party.

11.2    Either party may request a Change at any time.

11.3    A party requesting a Change shall provide to the other party a draft Statement of Work reflecting the requested Charge.

11.4    A party in receipt of a Change request may:

(a)      accept the Change request, in which case that party must countersign the draft Statement of Work and return it to the other party within the period of 14 days following receipt of the Change request;

(b)      reject the Change request, in which case that party must inform the other party of this rejection before the end of the period of 14 days following receipt of the Change request; or

(c)      issue an amended draft Statement of Work to the other party before the end of the period of 14 days following receipt of the Change request, in which case this Clause 11 will reapply with respect to the amended draft Statement of Work.

11.5    A proposed Change will not take effect until such time as a Statement of Work recording the Change has been signed by or on behalf of each party.

11.6    The Customer shall be responsible for paying any additional Charges necessary as a result of Changes, including Changes required as a result of any inaccurate or incomplete information supplied by the Customer to BSITC in relation to the preparation of any Statement of Work or Specification.

12. Charges and expenses

12.1    The Customer shall:

(a)      pay the Charges to BSITC; and

(b)      reimburse BSITC for all out-of-pocket expenses (including software licensing expenses) that are pre-approved in writing by Customer and incurred in connection with the Agreement.

12.2    BSITC shall maintain appropriate records and evidence of all such expenses and shall, promptly following receipt of a request from the Customer, submit copies of those records and that evidence to the Customer.

12.3    All amounts stated in or in relation to the Agreement are, unless the context requires otherwise, stated exclusive of any applicable value added taxes, which will be added to those amounts and payable by the Customer to BSITC.

12.4    BSITC may elect to vary any time-based rates for Charges by giving to the Customer not less than 30 days’ written notice of the variation.

12.5    Where the costs incurred by BSITC in providing the Services increase (including as a result of changes to services provider charges and foreign exchange rate changes), BSITC may elect to increase the corresponding Charges by giving to the Customer not less than 30 days’ written notice of the variation. Any such increase must reflect the actual cost increase incurred by BSITC, and BSITC must upon request provide to the Customer reasonable written evidence of any cost increase relied upon by BSITC to increase the Charges in accordance with this Clause 12.5.

13. Payments

13.1    BSITC shall issue invoices for the Charges to the Customer on or after the invoicing dates set out in a Statement of Work.

13.2    If the Agreement provides for payment of Charges in advance, then those Charges must be paid before the commencement of the corresponding Services. In any case, the Customer must pay the Charges to BSITC within the period of 14 days following the issue of an invoice.

13.3    If the Customer does not pay any amount properly due to BSITC under the Agreement, BSITC may charge the Customer interest on the overdue amount at the rate of 8% per annum above the Bank of England base rate from time to time (which interest will accrue daily until the date of actual payment and be compounded at the end of each calendar month).

13.4    If the Customer does not pay any amount properly due to BSITC under the Agreement, BSITC may on 5 Business Days’ written notice to the Customer suspend any or all of the Services pending payment of the relevant amount in cleared funds.

14. Confidentiality obligations

14.1    BSITC must:

(a)      keep the Customer Confidential Information strictly confidential;

(b)      not disclose the Customer Confidential Information to any person without the Customer’s prior written consent, and then only under conditions of confidentiality no less onerous than those contained in the Agreement;

(c)      use the same degree of care to protect the confidentiality of the Customer Confidential Information as BSITC uses to protect BSITC’s own confidential information of a similar nature, being at least a reasonable degree of care; and

(d)      act in good faith at all times in relation to the Customer Confidential Information.

14.2    The Customer must:

(a)      keep the BSITC Confidential Information strictly confidential;

(b)      not disclose the BSITC Confidential Information to any person without BSITC’s prior written consent, and then only under conditions of confidentiality no less onerous than those contained in the Agreement;

(c)      use the same degree of care to protect the confidentiality of the BSITC Confidential Information as the Customer uses to protect the Customer’s own confidential information of a similar nature, being at least a reasonable degree of care; and

(d)      act in good faith at all times in relation to the BSITC Confidential Information.

14.3    Notwithstanding Clauses 14.1 and 14.2, a party’s Confidential Information may be disclosed by the other party to that other party’s officers, employees, professional advisers, insurers, agents and subcontractors who have a need to access the Confidential Information that is disclosed for the performance of their work with respect to the Agreement and who are bound by a written agreement or professional obligation to protect the confidentiality of the Confidential Information that is disclosed.

14.4    No obligations are imposed by this Clause 14 with respect to a party’s Confidential Information if that Confidential Information:

(a)      is known to the other party before disclosure under the Agreement and is not subject to any other obligation of confidentiality;

(b)      is or becomes publicly known through no act or default of the other party; or

(c)      is obtained by the other party from a third party in circumstances where the other party has no reason to believe that there has been a breach of an obligation of confidentiality.

14.5    The restrictions in this Clause 14 do not apply to the extent that any Confidential Information is required to be disclosed by any law or regulation, by any judicial or governmental order or request, or pursuant to disclosure requirements relating to the listing of the stock of either party on any recognised stock exchange.

14.6    The provisions of this Clause 14 shall continue in force indefinitely following the termination of the Agreement.

15. Data protection

15.1    Each party shall comply with the Data Protection Laws with respect to the processing of the Customer Personal Data.

15.2    The Customer warrants to BSITC that it has the legal right to disclose all Personal Data that it does in fact disclose to BSITC under or in connection with the Agreement.

15.3    The Customer shall only supply to BSITC, and BSITC shall only process, in each case under or in relation to the Agreement:

(a)      the Personal Data of individuals carrying out transactions through any software hosted by or on behalf of BSITC under or in relation to the Agreement (or such other categories as may be agreed by the parties in writing); and

(b)      Personal Data of the following types (or such other types as may be agreed by the parties in writing): names, user account information, contact information and transaction information.

15.4    BSITC shall only process the Customer Personal Data for the purpose of providing the Services and such other purposes as the parties may agree in writing.

15.5    BSITC shall only process the Customer Personal Data during the Term and for not more than 30 days following the end of the Term, subject to the other provisions of this Clause 15.

15.6    BSITC shall only process the Customer Personal Data on the documented instructions of the Customer (including with regard to transfers of the Customer Personal Data from within the European Economic Area and the United Kingdom to any place outside the European Economic Area and the United Kingdom), as set out in the Agreement or any other document agreed by the parties in writing.

15.7    The Customer hereby authorises BSITC to make the following transfers of Customer Personal Data:

(a)      BSITC may transfer the Customer Personal Data to its own personnel, agents, offices and facilities across jurisdictions, providing that such transfers must be protected by appropriate safeguards where required by the Data Protection Laws;

(b)      BSITC may transfer the Customer Personal Data to a country, a territory or sector to the extent that the competent data protection authorities have decided that the country, territory or sector ensures an adequate level of protection for Personal Data; and

(c)      BSITC may transfer the Customer Personal Data from the United Kingdom and/or European Economic Area to its services providers in the United States of America providing that such services providers subscribe to the Privacy Shield scheme and are approved in accordance with Clauses 15.12 and 15.13.

15.8    BSITC shall promptly inform the Customer if, in the opinion of BSITC, an instruction of the Customer relating to the processing of the Customer Personal Data infringes the Data Protection Laws.

15.9    Notwithstanding any other provision of the Agreement, BSITC may process the Customer Personal Data if and to the extent that BSITC is required to do so by applicable law. In such a case, BSITC shall inform the Customer of the legal requirement before processing, unless that law prohibits such information on important grounds of public interest.

15.10  BSITC shall ensure that persons authorised to process the Customer Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.

15.11  BSITC shall each implement appropriate technical and organisational measures to ensure an appropriate level of security for the Customer Personal Data.

15.12  BSITC must not engage any third party to process the Customer Personal Data without the prior specific or general written authorisation of the Customer. In the case of a general written authorisation, BSITC shall inform the Customer at least 14 days in advance of any intended changes concerning the addition or replacement of any third party processor, and if the Customer objects to any such changes before their implementation, then the Customer may terminate the Agreement on 7 days’ written notice to BSITC, providing that such notice must be given within the period of 7 days following the date that BSITC informed the Customer of the intended changes. BSITC shall ensure that each third party processor is subject to equivalent legal obligations as those imposed on BSITC by this Clause 15.

15.13  As at the Effective Date, BSITC is hereby generally authorised by the Customer to engage, as sub-processors with respect to Customer Personal Data, third parties within the following categories: hosting services providers.

15.14  BSITC shall, insofar as possible and taking into account the nature of the processing, take appropriate technical and organisational measures to assist the Customer with the fulfilment of the Customer’s obligation to respond to requests exercising a data subject’s rights under the Data Protection Laws.

15.15  BSITC shall assist the Customer in ensuring compliance with the obligations relating to the security of processing of personal data, the notification of personal data breaches to the supervisory authority, the communication of personal data breaches to the data subject, data protection impact assessments and prior consultation in relation to high-risk processing under the Data Protection Laws. BSITC may charge the Customer at its standard time-based charging rates for any work performed by BSITC at the request of the Customer pursuant to this Clause 15.15.

15.16  BSITC must notify the Customer of any Personal Data breach affecting the Customer Personal Data without undue delay and, in any case, not later than 72 hours after BSITC becomes aware of the breach.

15.17  BSITC shall make available to the Customer all information necessary to demonstrate the compliance of BSITC with its obligations under this Clause 15 and the Data Protection Laws. BSITC may charge the Customer at its standard time-based charging rates for any work performed by BSITC at the request of the Customer pursuant to this Clause 15.17.

15.18  BSITC shall, at the choice of the Customer, delete or return all of the Customer Personal Data to the Customer after the provision of services relating to the processing, and shall delete existing copies save to the extent that applicable law requires storage of the relevant Personal Data.

15.19  BSITC shall allow for and contribute to audits, including inspections, conducted by the Customer or another auditor mandated by the Customer in respect of the compliance of BSITC’s processing of Customer Personal Data with the Data Protection Laws and this Clause 15. BSITC may charge the Customer at its standard time-based charging rates for any work performed by BSITC at the request of the Customer pursuant to this Clause 15.19, providing that no such charges shall be levied where the request to perform the work arises out of any breach by BSITC of the Agreement or any security breach affecting the systems of BSITC.

15.20  If any changes or prospective changes to the Data Protection Laws result or will result in one or both parties not complying with the Data Protection Laws in relation to processing of Personal Data carried out under the Agreement, then the parties shall use their best endeavours promptly to agree such variations to the Agreement as may be necessary to remedy such non-compliance.

16. Warranties

16.1    BSITC warrants to the Customer that:

(a)      the Deliverables as supplied conform in all material respects with any applicable Specification;

(b)      the software Deliverables will be supplied free from Defects; and

(c)      the Deliverables (excluding Customer Materials), when used by the Customer in accordance with the Agreement, will not infringe the Intellectual Property Rights of any person.

16.2    If BSITC reasonably determines, or any third party alleges, that the use of the Deliverables by the Customer in accordance with the Agreement infringes any person’s Intellectual Property Rights, BSITC may acting reasonably at its own cost and expense:

(a)      modify the Deliverables in such a way that they no longer infringe the relevant Intellectual Property Rights, providing that any such modification must not introduce any Defects into the Deliverables and must not result in the Deliverables failing to conform with the Specification; or

(b)      procure for the Customer the right to use the Deliverables in accordance with the Agreement.

16.3    All of the parties’ warranties and representations in respect of the subject matter of the Agreement are expressly set out in the Agreement. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of the Agreement will be implied into the Agreement or any related contract.

17. Acknowledgements and warranty limitations

17.1    The Customer acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of the Agreement, BSITC gives no warranty or representation that software Deliverables will be wholly free from defects, errors and bugs.

17.2    The Customer acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of the Agreement, BSITC gives no warranty or representation that software Deliverables will be entirely secure.

17.3    The Customer acknowledges that any software Deliverables are only designed to be compatible with that software specified as compatible in the relevant Specification; and BSITC does not warrant or represent that software Deliverables will be compatible with any other software.

18. Limitations and exclusions of liability

18.1    Nothing in the Agreement will:

(a)      limit or exclude any liability for death or personal injury resulting from negligence;

(b)      limit or exclude any liability for fraud or fraudulent misrepresentation;

(c)      limit any liabilities in any way that is not permitted under applicable law; or

(d)      exclude any liabilities that may not be excluded under applicable law.

18.2    The limitations and exclusions of liability set out in this Clause 18 and elsewhere in the Agreement:

(a)      are subject to Clause 18.1; and

(b)      govern all liabilities arising under the Agreement or relating to the subject matter of the Agreement, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in the Agreement.

18.3    Neither party shall be liable to the other party in respect of any losses arising out of a Force Majeure Event.

18.4    BSITC shall not be liable to the Customer in respect of any loss of profits or anticipated savings, any loss of revenue or income, any loss of use or production, or any loss of business, contracts or opportunities.

18.5    BSITC shall not be liable to the Customer in respect of any loss or corruption of any data or database, providing that this shall not affect BSITC’s liability to the Customer arising out of any breach by BSITC of Clause 14 or 15.

18.6    Neither party shall be liable to the other party in respect of any special, indirect or consequential loss or damage.

18.7    The liability of BSITC to the Customer under the Agreement in respect of any event or series of related events shall not exceed the total amount paid and payable by the Customer to BSITC under Agreement in the 12 month period preceding the commencement of the event or events (or, if the Agreement is in its first 12 months, the total minimum amount that would have been payable by the Customer to BSITC with respect to Services provided in the first 12 months of the Term). However, this Clause 18.7 will not affect BSITC’s liability to the Customer arising out of any breach of Clause 16.1(c).

18.8    The aggregate liability of each party to the other party under the Agreement shall not exceed GBP 1,000,000.

19. Force Majeure Event

19.1    If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under the Agreement (other than any obligation to make a payment), that obligation will be suspended for the duration of the Force Majeure Event.

19.2    A party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in that party performing any obligation under the Agreement, must:

(a)      promptly notify the other; and

(b)      inform the other of the period for which it is estimated that such failure or delay will continue.

19.3    A party whose performance of its obligations under the Agreement is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event.

20. Termination

20.1    Either party may terminate the Agreement by giving to the other party written notice of termination, providing that all Consultancy Services under Clause 4, Development Services under Clause 5 and Hosted App Services under Clause 6 have been cancelled or completed as at the date of effective termination of the Agreement.

20.2    The Agreement may also be terminated in accordance with the express provisions of any applicable Statement of Work.

20.3    Either party may terminate the Agreement immediately by giving written notice of termination to the other party if:

(a)      the other party commits any material breach of the Agreement, and the breach is not remediable; or

(b)      the other party commits a material breach of the Agreement, and the breach is remediable, but the other party fails to remedy the breach within the period of 30 days following the giving of a written notice to the other party requiring the breach to be remedied.

20.4    Either party may terminate the Agreement immediately by giving written notice of termination to the other party if:

(a)      the other party: (i) is dissolved; (ii) ceases to conduct all (or substantially all) of its business; (iii) is or becomes unable to pay its debts as they fall due; (iv) is or becomes insolvent or is declared insolvent; or (v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;

(b)      an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party; or

(c)      an order is made for the winding up of the other party, or the other party passes a resolution for its winding up.

20.5    BSITC may terminate the Agreement immediately by giving written notice to the Customer if:

(a)      any amount due to be paid by the Customer to BSITC under Agreement is unpaid by the due date and remains unpaid upon the date that that written notice of termination is given; and

(b)      BSITC has given to the Customer at least 14 days’ written notice, following the failure to pay, of its intention to terminate the Agreement in accordance with this Clause 20.5.

21. Effects of termination

21.1    Upon the termination of the Agreement, all of the provisions of the Agreement shall cease to have effect, save that the following provisions of the Agreement shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): Clauses 1, 13, 14, 15, 18, 21, 23 and 24.

21.2    Except to the extent that the Agreement expressly provides otherwise, the termination of the Agreement shall not affect the accrued rights of either party.

21.3    The Customer shall have no rights to use or enjoy any of the Services following the date of effective termination of the Agreement.

21.4    If the Agreement is properly terminated by the Customer under Clause 20.3, the Customer will be entitled to a refund of any Charges or other amounts paid by the Customer to BSITC under the Agreement with respect to Services that were to be provided after the date of effective termination. The amount of any such refund shall be calculated by BSITC on pro rata basis using any reasonable methodology.

21.5    If the Agreement terminates then, subject to Clauses 6.15 and 21.4:

(a)      the Customer must pay to BSITC all Charges and other amounts due under Agreement within 7 days following the date of effective termination of the Agreement, including amounts due with respect to Services that were to be provided after the date of effective termination (in particular, in the case of a Statement of Work covering both Development Services (as defined in Clause 5) and Hosted App Services (as defined in Clause 6), these amounts will include Charges for the Development Services and Charges for the first Hosted App Services Period (as defined in Clause 6), unless that Statement of Work expressly provides otherwise); and

(b)      the Customer shall not be entitled to any refund of any amounts previously paid to BSITC under the Agreement.

22. Notices

22.1    Any notice given under the Agreement must be in writing, whether or not described as “written notice” in the Agreement.

22.2    Any notice given by one party to the other party under the Agreement must be:

(a)      sent by courier;

(b)      sent by recorded signed-for post; or

(c)      sent by email,

          using the relevant contact details set out in an applicable Statement of Work.

22.3    The addressee and contact details set out in the applicable Statement of Work may be updated from time to time by a party giving written notice of the update to the other party in accordance with this Clause 22.

22.4    A party receiving from the other party a notice by email must acknowledge receipt by email promptly, and in any event within 2 Business Days following receipt of the notice.

22.5    A notice will be deemed to have been received at the relevant time set out below or, where such time is not within business hours (09:00 to 17:00 in the place of receipt), when business hours next begin after the relevant time set out below:

(a)      in the case of notices sent by courier, upon delivery;

(b)      in the case of notices sent by post, 48 hours after posting; and

(c)      in the case of notices sent by email, at the time of the sending of an acknowledgement of receipt by the receiving party.

23. General

23.1    Subject to any express restrictions elsewhere in the Agreement, BSITC may subcontract any of its obligations under the Agreement. BSITC shall remain responsible to the Customer for the performance of any subcontracted obligations.

23.2    During the Term and for 12 months following the end of the Term, the Customer must not, and must not assist any other person to, directly or indirectly, recruit or solicit (other than by general advertisement not directed specifically to any person or persons) for employment or engagement as an independent contractor any employee or independent contractor then employed or engaged by BSITC and involved in any respect with the Services or the performance of the Agreement. In the event of a violation of this Clause 23.2, BSITC will be entitled to liquidated damages equal to the compensation paid by BSITC to the applicable employee or contractor during the prior 24 months.

23.3    Save to the extent expressly permitted by applicable law, neither party may assign, transfer or otherwise deal with that party’s contractual rights and/or obligations under the Agreement without the prior written consent of the other party, such consent not to be unreasonably withheld or delayed, providing that either party may assign the entirety of its rights and obligations under the Agreement to any successor to all or a substantial part of the business of that party from time to time; the assigning party must promptly notify the other party in writing of any such assignment.

23.4    No breach of any provision of the Agreement will be waived except with the express written consent of the party not in breach. No waiver of any breach of any provision of the Agreement shall be construed as a further or continuing waiver of any other breach of that provision or any breach of any other provision of the Agreement.

23.5    If a provision of the Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions will continue in effect. If any unlawful and/or unenforceable provision of the Agreement would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect.

23.6    The Agreement is for the benefit of the parties and is not intended to benefit or be enforceable by any third party. The exercise of the parties’ rights under the Agreement is not subject to the consent of any third party.

23.7    The Agreement may not be varied except by means of a written document signed by or on behalf of each party, subject to Clause 11.

23.8    The Agreement shall constitute the entire agreement between the parties in relation to the subject matter of the Agreement, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter. Neither party will have any remedy in respect of any misrepresentation (whether written or oral) made to it upon which it relied in entering into the Agreement.

23.9    The Agreement shall be governed by and construed in accordance with English law. Any dispute arising out of or in connection with the Agreement, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration under the LCIA Rules, which LCIA Rules are deemed to be incorporated by reference into this clause. The number of arbitrators shall be 1. The seat, or legal place, of arbitration shall be London, England. The language to be used in the arbitral proceedings shall be English.

24. Interpretation

24.1    In the Agreement, a reference to a statute or statutory provision includes a reference to:

(a)      that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and

(b)      any subordinate legislation made under that statute or statutory provision.

24.2    In the Agreement, “including” means “including without limitation”.

Schedule 1

Service level agreement (SLA)

Introduction

This SLA sets out:

• BSITC’s commitments in relation to the availability of Hosted App Services; and
• the service levels applicable to the Support Services provided by BSITC to the Customer.

Terms defined in the main body of the Agreement and used in this SLA shall have the same meanings in this SLA as in the main body of the Agreement.

Availability commitment

BSITC shall use reasonable endeavours to maintain the Hosted App Services at 100% Uptime but does not guarantee this; however, BSTIC does guarantee 99.9% Uptime for the Hosted App Services during each calendar month, subject to the provisions of this SLA.

“Uptime” for a calendar month shall be calculated as a percentage, as follows: u = 100 * ( (tt – dt) / tt ) Where: u = Uptime tt = total time: the total time in minutes during the relevant calendar month dt = downtime: the total number of whole minutes during the relevant calendar month when the Hosted App Services were entirely unavailable, but excluding unavailability caused by the factors specified under Exceptions below

BSITC shall monitor the Uptime of the Hosted App Services using a reasonable methodology, and upon request shall report Uptime measurements for a calendar month to the Customer.

Service credits: availability

If the Customer believes that BSITC has not met the Uptime guarantee with respect to a calendar month, the Customer must notify BSITC before the end of the next following month. Within 14 days following receipt of the Customer’s notice, BSITC will assess whether the Uptime guarantee was met and, if it was not, will award the Customer service credits in accordance with the following table, subject to the Exceptions below.

Uptime	Service credit percentage*
Greater than or equal to 99.9%	No service credit entitlement
Less than 99.9% but greater than or equal to 99.5%	10%
Less than 99.5% but greater than or equal to 95%	25%
Less than 95%	100%

To calculate the service credit due with respect to a calendar month, the relevant service credit percentage shall be applied to the Charges paid and payable by the Customer to BSITC with respect to the Hosted App Services provided by BSITC during that calendar month (excluding any VAT).

Service credits earned by the Customer shall be automatically deducted from any invoice or invoices issued by BSITC following the date of BSITC’s notice, until such time as all earned service credits have been applied.

If the Agreement has terminated and BSITC has no further right to invoice the Customer with respect to the Charges for the Hosted App Services, any service credits due to the Customer shall be lost under the Agreement.

For the avoidance of doubt, service credits may not be converted to cash and the Customer shall have no entitlement to cash in lieu of service credits.

The Customer agrees that, except in the case of material breach of the Agreement by BSITC, the Customer’s only remedy for a failure to meet the Uptime commitment specified in this SLA shall be service credits awarded in accordance with this SLA.

Exceptions

Downtime caused directly or indirectly by any of the following shall not constitute a breach of the Agreement, and such downtime shall not be counted against Uptime:

(a)      a Force Majeure Event;

(b)      a fault or failure of the internet or any public telecommunications network;

(c)      a fault or failure of BSITC’s hosting infrastructure services provider, unless such fault or failure constitutes an actionable breach of the contract between BSITC and that company;

(d)      a fault or failure of the Customer’s computer systems or networks, or of any third party computer system or network that is connected to the Customer’s computer systems or networks by means of the Hosted App Services;

(e)      any improper use of the Hosted Services App by the Customer, or any use by the Customer other than in accordance with the documentation for such use supplied or made available by BSITC to the Customer;

(f)       any breach by the Customer of the Agreement; or

(g)      scheduled maintenance carried out in accordance with the Agreement.

Scheduled maintenance

BSITC may from time to time suspend the Hosted App Services for the purposes of scheduled maintenance to the Platform, providing that:

• give to the Customer at least 5 Business Days’ prior written notice of scheduled maintenance that will, or is likely to, affect the availability of the Hosted App Services or have a material negative impact upon the Hosted App Services; and
• ensure that all scheduled maintenance is carried out outside the hours of 09:00 to 23:00 GMT/BST on a Business Day (“Support Hours“).

Emergency maintenance

The Customer acknowledges that occasionally maintenance may be performed without notice and/or within Support Hours.

Support Services

The Customer may request Support Services by contacting BSITC using the relevant email address designated by BSITC from time to time or by such other method as BSITC may specify from time to time.

BSITC shall use reasonable endeavours to respond to requests for Support Services and to resolve issues raised through the Support Services as follows.

Classification	Description	Target response time	Target resolution time
One	A failure of the Hosted App Services resulting in the Hosted App Services being entirely unavailable or a core function of the Hosted App Services being unavailable (where no workaround is available)	1 Support Hours	4 Support Hours
Two	A failure of the Hosted App Services resulting in a core function of the Hosted App Services being significantly impaired (where no workaround is available) or A failure of the Hosted App Services that would fall within classification one, but for a workaround being available to the Customer	2 Support Hours	1 Business Day
Three	A failure of the Hosted App Services resulting in a non-core  function of the Hosted App Services being unavailable or significantly impaired (where no workaround is available) or A failure of the Hosted App Services that would fall within classification two, but for a workaround being available to the Customer	8 Support Hours	5 Business Days
Four	Any impairment of the Hosted App Services not falling into the above categories or A failure of the Hosted App Services that would fall within classification three, but for a workaround being available to the Customer	2 Business Days	10 Business Days

For these purposes, a “core function” of the Hosted App Services is one which is fundamental to the operation of the Hosted App Services such that its unavailability would have a material negative impact upon: (i) the Customer’s business; or (ii) the day-to-day use of the Hosted App Services by the Customer. Any other function is a “non-core function”.

BSITC shall determine, acting reasonably, into which severity classification an issue falls.

BSITC shall ensure that its response to a request for Support Services shall include the following information (to the extent such information is relevant to the request): an acknowledgement of receipt of the request, where practicable an initial diagnosis in relation to any reported error, and an anticipated timetable for action in relation to the request.

Limits to Support Services

The Customer acknowledges that:

(a)      BSITC will have no obligation to provide Support Services in respect of any issue caused by the improper use of the relevant Services, any act of the Customer that constitutes a breach of the Agreement, or any alteration to the Services made by the Customer without the prior consent of BSITC; and

(b)      the Support Services are not intended as a substitute for proper training, and BSITC may decline to provide Support Services in relation to questions concerning the use of the Services if it reasonably considers that the Customer should be able to answer such questions itself.

Updated 24^th January, 2022.