essential Terms of Business

Essential Agreement V1.3

Terms and Conditions - Part one - General

1-1. DEFINITIONS AND INTERPRETATION

1-1.1 This clause 1-1 sets out definitions and rules of interpretation for this Agreement.

1-1.2 Unless the contract otherwise requires, the following expressions shall have the following meanings:

“Additional Benefit” means , in the Company’s sole opinion, anything enjoyed by the Customer, and provided by the Company, of which did not form part of the Software or Services provided to the Customer at the Agreement Date nor is included in any Order Document or Contract Document. Any and all charges for Additional Benefits will be notified to the Customer after which the relevant costs will be made payable per other Charges”

“Agreement Date” means, the date on which this Agreement is countersigned by the Company;

“Agreement Term” means the fixed term of this Agreement set out in the Schedule;

“Agreement Year” means a period commencing on the Agreement Date or on an anniversary of such Agreement Date and terminating on the earlier of the next anniversary of such Agreement Date and the date of termination of this Agreement;

“Associated Company” means any holding company for the time being of the Customer and any subsidiary for the time being of the Customer or of any such holding company, in each case carrying on business in the United Kingdom, and the terms “holding company” and “subsidiary” shall have the meanings given to them by s.1159 Companies Act 2006;

“Authorised Representative” means the officer of a party specified in the schedule, or such other officer as may be notified by a party to the other in writing from time to time or (if such post shall cease to exist or be vacant) the Chairman of each party;

“Business Pack” means an existing set of standard configurations, which can be applied to a Product to facilitate its use for a particular industry sector;

“Charges” means the charges payable in respect of particular Services, as more particularly set out in the Schedule;

“Confidential Information” means all information shared by one party with the other including but not limited to, its business, finances, customers, services, processes and products communicated or received in any way whatsoever including, but not limited to, orally, in writing, electronically or obtained through observation. All such information which is designated as confidential or which is otherwise clearly confidential in nature constitutes “Confidential Information”;

“Consultancy Services” means the services detailed as such in the Schedule;

“Customer’s Obligations” means the obligations of the Customer set out or referred to in this Agreement or a Service Level Agreement;

“Data” means the payroll, personnel and associated data of the Customer and the Associated Companies;

“Data Controller" and "Data Processor” have the meanings set out in s.1(1) Data Protection Act 1998;

"controller", "processor", “data subject”, "personal data", and "processing" in section 1-9.B shall have the meanings given by the Data Protection Legislation in the context of which the term is being applied;

“Data Subject” means an individual who is the subject of Personal Data;

“Documentation” means any documentation or other materials made available by the Company to the Customer under this Agreement;

“Expenses” means the Company’s reasonable travelling and subsistence expenses, including the Company’s travelling time, incurred in providing any Services to the Customer at the Customer’s premises. Expenses will be charged separately and in accordance with the Company’s prevailing rates from time to time.

“Hosting Services” means the services detailed in the Schedule, 4 (including any Service Level Agreement referred to in it) in connection with the hosting of the Software identified in the Schedule by the Company on behalf of the Customer;

“Managed Services” means the services detailed as such in the Schedule (including any Service Level Agreement referred to in it), including the Payroll Services and Hosting Services as the case may be;

“Implementation Period” means the period of one year beginning on the Agreement Date;

“Implementation Project” has the meaning set out in clause 2-5.1;

“Implementation Services” means the services detailed as such in the Schedule in connection with the installation and implementation of the Software;

"Installation Address" means the premises specified in the Schedule where an item of Software is to be installed and operated;

"Intellectual Property Rights" means copyrights, rights in databases, patents, trademarks, business or trade names, domain names, registered designs, utility models, design rights, inventions, trade secrets, confidential information, know-how, get-up, and all other intellectual property and neighbouring rights and rights of a similar or corresponding character anywhere in the world (whether or not the same are registered or capable of registration) and all applications and rights to apply for or for the protection of any of the foregoing;

“Losses” means costs, expenses, liability, injuries, losses, damages, claims, demands and legal costs and judgments;

“Normal Working Hours” means between 09.00 and 17.30 on a Working Day;

“Maintenance Charge” means the charge set out in the Schedule (as such may be amended from time to time in accordance with this Agreement), for the provision of Product Support;

“Payroll Services” means the payroll services detailed in the Schedule (including any Service Level Agreement referred to in it);

“Personal Data” has the meaning set out in section 1(1) of the Data Protection Act 1998 and relates only to personal data, or any part of such personal data, in respect of which the Customer is the Data Controller and in relation to which the Company is providing the Services;

“Processing” and “Process” have the meaning set out in section 1(1) of the Data Protection Act 1998;

“Product” means the software, with the sub-release number and incorporating the modules, specified in the Schedule as being licensed to Customer (and including any new releases, sub-releases, fixes, updates or new versions which the Customer has elected to adopt from time to time in accordance with the terms of this Agreement);

“Product Documentation” means, in relation to a given Product, the operating manuals, user instructions and user guides for that Product;

“Product Support” means the Services set out in clauses 3-5, 3-6 and 3-7;

“Project Manager” means a Representative of a party designated to act as the project manager in respect of particular Set Up Services;

“Quarter Date” means 1 January, 1 April, 1 July or 1 October, and "quarter" and "quarterly" shall be construed accordingly;

“Representative” means an officer, employee, sub-contractor or agent of the Company or the Customer or (in the case of the Company) any other person working under the direction of the Company;

“Schedule” means a schedule executed by the parties setting out additional terms applicable to particular Software and/or Services;

“Service Level Agreement” means the service level agreement appended to this Agreement, which sets out additional detail regarding the respective obligations of the parties in relation to the Services;

“Services” means any services provided by the Company to the Customer under this Agreement;

“Service Charge” means the charge set out in the Schedule (as such may be amended from time to time in accordance with this Agreement), for the provision of the Managed Services and the licence of the Software;

“Set Up Charge” means the charge set out in the Schedule for the provision of the Set Up Services;

“Set Up Services” means the services detailed as such in the Schedule including the Implementation Services, Consultancy Services and Training Services;

"Software" means any Product, Third Party Product or other software made available by the Company to the Customer under this Agreement;

“Specification” means the specification published by the Company from time to time, or developed or agreed by the parties under this Agreement, for a particular Software component or functionality, including but not limited to any Design Documents or User Guides.

“Term” means the period commencing on the Agreement Date and ending on the date of termination of this Agreement (however such termination is effected);

"Third Party Product" means the third party software (if any) specified in the Schedule;

“Third Party Product Terms” means the terms referred to in clause 3-4.7.

“Training Services” means the services detailed as such in the Schedule.

"Transfer Regulations" means the Transfer of Undertakings (Protection of Employment) Regulations 2006 and any successor legislation;

"Use" means:

(a) the processing or running of the Software or Product Documentation;

(b) the reading and possession of Product Documentation in conjunction with the uses set out in (a) and (b) above; and

“Working Day” means any day other than Saturdays, Sundays and English bank and other public holidays.

1-1.3 A reference to a statutory provision includes a reference to that provision as amended, consolidated or re-enacted (whether before or after the date of this Agreement).

1-1.4 Words importing one gender include all genders, words importing the singular include the plural, and (in each case) vice versa.

1-1.5 References to a "person" will be construed so as to include bodies corporate, unincorporated associations and partnerships.

1-1.6 Unless otherwise stated, references to clauses are to clauses of this Agreement.

1-1.7 If there is a conflict between any provisions in this Agreement, then (unless expressly stated to the contrary) the following order of precedence shall apply: the MSA, and the Order Document (including and annexures to it).

1-1.8 Any headings are for ease of reference only and shall not affect the construction of any provisions of this Agreement.

1-1.9 The words “include”, “includes”, “including” and “included” will be construed without limitation.

1-1.10 References to a "party" are to the Customer or Company (as applicable), and references to the "parties" are to both of them.

1-1.11Any obligation of one party to indemnify the other shall be deemed to mean that the party giving the indemnity will indemnify and keep indemnified the other party on a full indemnity basis against all Losses.

1-2. COMPANY’S OBLIGATIONS

1-2.1 In consideration of the payment by the Customer of the Charges in accordance with clause 1-5, the Company:

(a) grants to the Customer (subject to the provisions of Part Three) a non-exclusive, non-transferable licence to Use the Product and the Product Documentation at the Installation Address for the Purpose of Use;

(b) will deliver the Product and the Product Documentation to the Customer;

(d) will provide the Business Pack (if any) indicated in the Schedule (in which case such Business Pack shall form part of the licence granted under clause 1-2.1(a)).

(e) will provide the Set Up Services indicated in the Schedule to the Customer on the terms and conditions of this Agreement, including particularly Part Two;

(f) provide the Managed Services to the Customer on the terms and conditions of this Agreement, particularly Part Four;

in each case on the terms and conditions of this Agreement.

1-3. WARRANTY

1-3.1 Subject to the other provisions of this clause 3, the Company warrants that the Services will be provided:

(a) with reasonable care and skill;

(b) in accordance with Good Industry Practice; and

(d) when properly used as indicated in the Product Documentation, the Product will operate in accordance with the Specification and Product Documentation; and

(e) when used in conjunction with the Product, the Product Documentation will provide adequate instruction to enable such of the Customer's employees who are reasonably competent users, and who have successfully completed training courses in accordance with the Company's current minimum recommendations, to make proper use of the Product;

(f) the Managed Services will be provided in accordance with the Service Level Agreement.

1-3.2 If the Company breaches the warranty given in clause 1-3.1 (a), it shall at its option, and as applicable:

(a) repeat performance of the part of the relevant Services, as appropriate, which are found not to conform to the warranty; or

(b) refund an appropriate proportion of those Charges paid by the Customer which are attributable to the part of the Services found not to conform to the warranty.

1-3.3 The warranty in clause 1-3.1 (a) is conditional upon:

(a) the Customer giving written notice to the Company of any alleged breach of such warranty within 30 days of the date when the Customer discovers or ought reasonably to have discovered the alleged breach;

(b) the Customer affording the Company reasonable opportunity to investigate the failure in the provision of the Services; and

(c) the Customer not having committed any breach of its obligations under this Agreement which has led or contributed to the breach of warranty concerned.

1-3.4 If the Company breaches any of the warranties given in clause 1-3.1 (b) or (c), it shall at its option, and as applicable:

(a) remedy the breach of the warranty by providing Product Support; or

(b) replace the Product or any part of the Product found not to conform to the warranty.

1-3.5 If the Company breaches the warranty given in clause 1-3.1 (d), it shall at its option, and as applicable:

(a) repeat performance of the part of the Managed Services found not to conform to the warranty; or

(b) refund an appropriate proportion of those Charges paid by the Customer which are attributable to the part of the Managed Services found not to conform to the warranty.

1-3.6 The warranty in clause 1-3.1 (d) is conditional upon:

(b) the Customer affording the Company reasonable opportunity to investigate the failure in the provision of the Managed Services; and

(c) the Customer not having committed any breach of its obligations under this Agreement which has led or contributed to the breach of warranty concerned.

1-3.7 Other than any express warranties set out in this Agreement (including those in clause 1-3.1 and the Schedule), and save to the extent prohibited by law, any representation, statement, condition, term or warranty, express or implied, statutory or otherwise, as to any Software, Services or Documentation is hereby excluded.

1-4. LIMITATION OF LIABILITY

1-4.1 Nothing in this Agreement excludes or limits the liability of either party for death or personal injury caused by that party’s negligence, or for fraudulent misrepresentation.

1-4.2 The aggregate liability of the Company under this Agreement in respect of physical damage caused to the Customer’s property as a result of the Company’s negligence shall not exceed £5 million.

1-4.3 Subject to clause 1-4.1, the Company shall not under any circumstances have any liability for any loss or damage which may be suffered by the Customer (or any other person having the benefit of this Agreement) whether arising in respect of any breach of this Agreement or any representation or tortious act or omission (including negligence and breach of statutory duty) or otherwise howsoever arising under or in connection with this Agreement, and which falls within any of the following categories:

(a) indirect or consequential loss or damage (irrespective of whether the Company was aware of the circumstances giving rise to such loss or damage);

(b) loss of profits;

(d) loss of anticipated savings;

(e) loss of business opportunity; or

loss of goodwill; provided that this clause 1-4.3 shall not prevent claims for direct financial loss arising out of a breach of the Data Protection Act 1998 or any other claims for direct financial loss that are not excluded by clauses 1-4.3(a) to 1-4.3(g).

1-4.4 Other than the liability referred to in clauses 1-4.1, 1-4.2 and 1-4.6, the aggregate liability of the Company under or in connection with each Agreement (whether arising in contract, tort (including negligence or breaches of statutory duty by the Company or its Representatives, under any indemnity or otherwise but not including its liability for breach of the Data Protection Act 1998, the Data Protection Legislation, clause 1-9A.2 or clause 1-9B.2) in an Agreement Year shall not exceed an amount equal to 125% (one hundred and twenty five percent) of the total Charges paid or payable by the Customer under the relevant Agreement during such Agreement Year.

1-4.5 Other than the liability referred to in clauses 1-4.1, 1-4.2 and 1-4.6, the aggregate liability of the Company under or in connection with each Agreement (whether arising in contract, tort (including negligence or breaches of statutory duty by the Company or its Representatives, under any indemnity or otherwise but not including its liability for breach of the Data Protection Act 1998, the Data Protection Legislation, clause 1-9A.2 or clause 1-9B.2) during the Term or thereafter shall not exceed an amount equal to 125% (one hundred and twenty five percent) of the total Charges paid or payable by the Customer under the relevant Agreement during the Agreement Term of it.

1-4.6 The aggregate liability of the Company under the indemnities in clauses 1-9A.2 and 1-9B.2 in respect of all Losses suffered or claimed by the Customer (or any other person having the benefit of an Agreement) during the Term or thereafter shall not exceed £1,000,000 (one million pounds).

1-4.7 The parties have entered into this Agreement after due consideration and in the knowledge that the liability of the Company is to be limited in accordance with the terms of this Agreement and that the Charges have been set accordingly. The Customer acknowledges that:

(a) a higher price would have been payable but for such limitations; and

(b) the relevant Software and/or Services have not been developed to meet the Customer’s individual requirements and it is therefore the responsibility of the Customer to ensure that the facilities and functions as described in the Product Documentation meet its requirements.

1-5 CHARGES

1-5.1 The Charges are as set out in the Schedule and shall be payable by the method there indicated.

1-5.2 All Charges are separate. Where any element of the Charges is disputed, the Customer shall not be entitled to withhold payment of any other elements of the Charges which are not the subject of that dispute.

1-5.3 The Company's reasonable travelling and subsistence expenses incurred in providing any Services to the Customer at the Customer's premises will be charged separately in accordance with the Company’s prevailing rates from time to time. The Company’s travelling time to the Customer's premises (or such other location as the Customer may request) will be charged separately at the hourly rate of 1/30th of the daily rate set out in the Schedule (or, if no such rate is set out, at the Company's then prevailing rates).

1-5.4 The cost of any work carried out by the Company in connection with matters which are the responsibility of the Customer or any correction or rectification by the Company of faults in relation to any Software or Services caused by circumstances within the Customer’s control will be charged (in addition to the Charges) at the Company’s prevailing rates from time to time on a time and materials basis.

1-5.5 Any amounts charged under clause 1-5.4 shall be due and payable by the Customer within 30 days of the date of the Company's invoice.

1-5.6 Where the Managed Services involve the production of payslips, the Service Charge is based on the production in each quarter of payslips up to the number indicated in the Schedule as the "Quarterly Payslip Provision". If in any month the number of payslips produced by the Company in accordance with an Agreement exceeds the relevant Quarterly Payslip Provision, then:

(a) an additional charge, referred to as "the Overage Charge", will be payable by the Customer;

(b) the Overage Charge will be calculated by multiplying the Overage Rate set out in the Schedule by the number of payslips produced in the month concerned in excess of the Quarterly Payslip Provision;

(c) the Company shall invoice the Overage Charge following the end of the month to which it relates, and may aggregate up to three months’ such charges in a single invoice;

(d) the Customer shall pay any such invoice within 30 days of the date of such invoice;

1-5.7 Where the Managed Services involve postage and packing of payslips, the cost of such postage and packing is not included in the Service Charge and shall be invoiced by the Company monthly in arrears.

1-5.8 The Service Charge has been determined on the basis that the Managed Services are performed during the hours set out in the Service Level Agreement. If the Company is required to provide any Managed Services outside these hours due to the Customer's acts or omissions, an additional charge for the Managed Services in question (to be agreed separately, in writing and prior to their delivery) will be payable.

1-5.9 No sum due under this Agreement shall be regarded as paid until the date of the actual receipt of cleared funds by the Company or its bankers without deduction of any bank charges or commissions.

1-5.10 All sums set out in this Agreement are net and exclusive of any taxes, duties or other additional sums associated with the relevant Software or Services including Value Added Tax, withholding tax, import or other successor duties and any bank charges, commissions or deductions, which shall in each case be payable by the Customer.

1-5.11 Any increases in costs to the Company in delivering any Software or Services may be passed on to the Customer by way of an increase in the relevant quarterly charges.

1-5.12 If any sum due from the Customer to the Company is not paid by the Customer by the due date for it and is not subject to a bona fide dispute, the Company reserves the right (without prejudice to its other rights and remedies) to:

(a) charge interest on the outstanding sum until payment at the rate set out in the Late Payment of Commercial Debts (Interest) Act 1998, in which case the Customer shall pay such interest on demand; and

(b) suspend the provision of any Services and the rights granted to the Customer to Use any Software by giving 7 days' notice in writing to the Customer to that effect.

1-5.13 Where the Term of this Agreement is more than two years, on the second and each subsequent anniversary of the Agreement Date, the Company shall be entitled to increase any Charges payable under that Agreement (a "Charge Adjustment") by an amount equal to the greater of five per cent and the RPI Change. For these purposes, the "RPI Change" means the percentage change in the UK Retail Prices Index between (a) the date on which the Company last made a Charge Adjustment or (if no such Charge Adjustment has previously been made) the Agreement Date, and (b) the date on which the Company intends to make the current Charge Adjustment.

1-6. COMMENCEMENT, DURATION AND TERMINATION

1-6.1 This Agreement shall commence on the relevant Agreement Date and, unless terminated earlier in accordance with its terms (including under the provisions of clause 1-6.2), shall continue for the Agreement Term at the expiry of which it shall terminate.

1-6.2 This Agreement may be terminated:

(a) immediately by either party if the other party commits a material breach of this Agreement which (in the case of a breach capable of being remedied) has not been remedied within 15 Working Days of a written notice from the party not in default requiring the other party to remedy that breach;

(b) immediately by the Company if an amount due under it or any other Agreement is overdue and is not paid within 15 Working Days of the Company giving written notice to the Customer setting out details of the amount and stating that it is overdue;

(c) immediately by either party if any of the following events (or any event analogous to any of the following, in a jurisdiction other than England and Wales) occurs in respect of the other party:

(i) a proposal is made for a voluntary arrangement or for any other composition, scheme or arrangement with, or assignment for the benefit of, its creditors;

(ii) a shareholders’ meeting is convened or a resolution is passed for its winding up (except for a bona fide reconstruction or amalgamation);

(iii) a petition is presented for its winding up (which is not dismissed within 14 days of its service) or an application is made for the appointment of a provisional liquidator or a creditor’s meeting is convened pursuant to s.98 Insolvency Act 1986;

(iv) a receiver, manager or administrative receiver is appointed over any or all of its undertaking or assets;

(v) an administrator is appointed or an application is made for such an appointment or the making of an administration order;

(vi) it becomes insolvent within the meaning of s.123 Insolvency Act 1986; or

(vii) a moratorium comes into force pursuant to Schedule A1 of the Insolvency Act 1986.

1-6.3 The termination of this Agreement shall be without prejudice to the rights of the parties accrued up to the date of such termination.

1-6.4 Clauses 1-2, 1-4, 1-6, 1-7.1, 1-8, 1-9, 1-10, 1-14, 1-15, 1-16, 1-17, 1-18, 1-19 and 1-20 of this Agreement shall apply with effect from the Agreement Date, and shall survive the termination of Agreement.

1-7. INTELLECTUAL PROPERTY RIGHTS

1-7.1 All Intellectual Property Rights in any Software, Services, Specification and Documentation belong and shall belong to the Company or its licensors, and the Customer shall have no rights in or to them other than the right to Use them in accordance with the terms of this Agreement.

1-7.2 The Company warrants that its title to and property in the Product is free and unencumbered and that it has the right, power and authority to license the same (including any software included in the Product which may have been originated by a third party) on the terms of this Agreement.

1-7.3 The Customer hereby grants to the Company, for the Term, a non-exclusive royalty-free licence to use, operate, copy and modify the Customer's Intellectual Property Rights for the purpose only of performing the Company's obligations under this Agreement.

1-8. CONFIDENTIALITY

1-8.1 Each party may receive from the other party confidential or proprietary information of the other party. All such information which is designated as confidential or which is otherwise clearly confidential in nature constitutes "Confidential Information" and neither party shall use Confidential Information for any purpose other than the performance of this Agreement or to enjoy the rights granted to it under this Agreement or copy or disclose any Confidential Information to any third party without the other party’s prior written consent.

1-8.2 Nothing in clause 1-8.1 shall prevent either party from disclosing Confidential Information to such of its Representatives that require access to the Confidential Information in the performance of that party’s obligations, provided that such Representatives are contractually bound not to disclose the same.

1-8.3 Without prejudice to clause 1-8.1, the Software, Services, Documentation, Specification and any information, data, specifications, source or object codes which the Company may from time to time impart to the Customer or its Associated Companies are proprietary and confidential to the Company (or its suppliers or licensors), and the Customer shall keep them confidential in accordance with clause 1-8.1.

1-8.4 Each party shall indemnify the other from and against any losses suffered or incurred by the other as a result of a breach by the first party of its obligations under this clause 1-8.

1-8.5 The restrictions in clause 1-8.1 and 1-8.3 shall not apply to:

(a) items which were already in the possession of the party concerned before disclosure (except as a result of a breach of this or any other agreement);

(b) items obtained from another source which is free to disclose the same;

(d) the compiling and copying of elements of the Data (which do not, taken together, comprise Personal Data) by the Company for the purposes of collating aggregated data or statistics for research purposes.

1-9. DATA PROTECTION

The parties acknowledge that the GDPR comes into force on 25 May 2018 (the "Regulation Date") and this will change the nature of their legal obligations to one another in relation to data protection matters. Therefore the parties agree that:

(a) the provisions of Clauses 9A.1 to 9A.9 shall apply from the Agreement Date until 23:59 on 24 May 2018; and

(b) the provisions of Clauses 9B.1 to 9B.12 shall apply from the Regulation Date, or, insofar as they relate to any other Data Protection Legislation, from the commencement date of that legislation, in each case for the remainder of the Term; and

1-9A.1 The parties acknowledge that, for the purposes of the Data Protection Act 1998, the Company is the Data Processor and the Customer is the Data Controller in respect of any Personal Data. The Customer acknowledges that the Company is reliant on the Customer for direction as to the extent that the Company is entitled to use and process Personal Data and that such direction will be set out in a Service Level Agreement (or other Contract Document).

1-9A.2 If applicable, each party warrants to the other that it has registered under the Data Protection Act 1998 in respect of Personal Data and shall continue to comply with its requirements. If either party breaches its obligations under that Act (or any successor legislation) it shall indemnify the other from and against any resulting Losses. Without limiting the foregoing, where an individual whose Personal Data has been Processed by the Company makes a claim about the Company’s Processing, the Customer shall indemnify the Company against Losses arising from such Processing to the extent that such Processing reflects instructions from the Customer or its Associated Company.

1-9A.3 The Company shall Process the Personal Data only in accordance with the Customer’s instructions from time to time and shall not Process the Personal Data for any purpose other than those expressly authorised by the Customer.

1-9A.4 The Company shall, having regard to the state of technological development and the cost of implementing the measures, take appropriate technical and organisational measures against the unauthorised or unlawful Processing of Personal Data and against the accidental loss or destruction of, or damage to, Personal Data to ensure a level of security appropriate to:

(a) the harm that might result from such unauthorised or unlawful Processing or accidental loss, destruction or damage; and

(b) the nature of the data to be protected, including, but not limited to, the security measures set out in any Service Level Agreement.

1-9A.5 The Company may authorise a third party (“sub-contractor”) to Process Personal Data of the Customer, provided that:

(a) the Company's contract with the subcontractor is on terms which are substantially the same as those set out in the relevant Agreement in respect of the Processing of Personal Data; and

(b) the subcontractor's Processing of Personal Data terminates automatically on the termination of the relevant Agreement.

1-9A.6 Where:

(a) the Company is to use a sub-contractor based outside of the European Economic Area for the Services or part thereof; and

(b) the country to which the Personal Data is being transferred has not been the subject of a finding of adequacy within the meaning of Article 25 of the Data Protection Directive (95/46/EC),

the Company shall ensure that any such contract with the sub-contractor shall contain the standard clauses for the transfer of personal data to processors established in third countries which do not ensure an adequate level of protection pursuant to the Data Protection Directive (95/46/EC), notwithstanding that the Company is not a Data Controller in respect of the Personal Data.

1-9A.7 The Customer shall ensure that it, and its Associated Companies, comply with all applicable legislation, regulations or codes of practice in respect of the Personal Data from time to time (including the Data Protection Act 1998), including in its role as a Data Controller and in supplying or making available to the Company any Personal Data for Processing by the Company in performance of its obligations under an Agreement. The Customer shall indemnify the Company against any loss, claim or expense that it may suffer as a result of a failure by the Customer to comply with such legislation, regulations or codes of practice.

1-9A.8 The Customer warrants to the Company that:

(a) all Personal Data provided to the Company pursuant to an Agreement will be, to the best of its knowledge, accurate and complete in all material respects, and that the Customer is entitled to provide the same to the Company without recourse to any third party; and

(b) the Personal Data does not and shall not, so far as it is aware, infringe the rights of any third party.

1-9A.9 The Company acknowledges that the Personal Data belongs to the Customer.

1-9B.1 With respect to the parties’ rights and obligations under an Agreement, the parties acknowledge that, for the purposes of the Data Protection Legislation, the Company is the Data Processor and the Customer is the Data Controller in respect of any Personal Data processed by the Company pursuant to that Agreement. [X] sets out the scope, nature and purpose of processing by the Company, the duration of the processing and the types of Personal Data and categories of Data Subject.

1-9B.2 Each party shall comply with all applicable requirements of the Data Protection Legislation in respect of Personal Data. This clause 9B is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation.

1-9B.3 Without limiting the generality of the foregoing, the Company shall:

(a) Process the Personal Data only on behalf of the Customer, only for the purposes of performing an Agreement and only in accordance with the Customer’s documented instructions from time to time, including with regard to transfer of Personal Data to a third country or international organisation, unless required to do so by the law of the European Union or a member state to which the Company is subject, in which case it will inform the Customer of that legal requirement before processing, subject to the exception in Article 28 (1) of the GDPR. The Customer’s documented instructions include any tasks attributed to the Company in a Service Level Agreement;

(b) inform the Customer if, in its opinion, an instruction infringes Regulation Article 28 of the GDPR or any other provision of the Data Protection Legislation;

(c) Ensure that all persons authorised by the Company to process the Personal Data have committed themselves to confidentiality or are under a statutory obligation of confidentiality;

(d) Take such measures in relation to the security of the Personal Data as are required of it by Article 32 of the GDPR;

(e) Observe the requirements of Articles 28(2) and Article 28(4) of the GDPR with regard to the engagement of sub-processors;

(f) taking into account the nature of the processing, assist the Customer by appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the Customer's obligation to respond to requests by Data Subjects to exercise their rights under Chapter III of the GDPR (including the right to transparency and information, the data subject access right, the right to rectification and erasure, the right to the restriction of processing, the right to data portability and the right to object to processing);

(g) Taking into account the nature of the processing under an Agreement and the information available to the Company, assist the Customer in carrying out its obligations under Articles 32 to 36 of the GDPR and any other Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;

(h) At the Customer's written direction, within a reasonable period delete or return all Personal Data to the Customer on the expiry or termination of the relevant Agreement, and delete existing copies unless required by law to store the Personal Data;

(i) Make available to the Customer information that demonstrates its compliance with Article 28 (3) of the GDPR and its obligations in this clause 9B;

(j) Permit the Customer or a third party authorised by it, to carry out audits and inspections of the processing of Personal Data by the Company, on reasonable notice in normal business hours. The Company may require a third party auditor to enter into a confidentiality agreement before permitting it to carry out an audit. The Company reserves the right to make a charge for the time of its personnel engaged in assisting with an audit; and

(k) Notify the Customer without undue delay after becoming aware of a personal data breach.

1-9B.4 If the Company notifies the Customer that, in its opinion, an instruction infringes Article 28 of the GDPR or any other applicable Data Protection Legislation, or is of the opinion that an instruction to process Personal Data is for purposes other than the performance of the relevant Agreement, it will consult with the Customer as soon as reasonably possible. If the Company, after consultation is of the same opinion, it will not be obliged to follow that instruction.

1-9B.5 Without limiting the generality of the foregoing, the Customer shall:

(a) ensure that it, and its Associated Companies, comply with the Data Protection Legislation and all applicable codes of practice in respect of the Personal Data from time to time, including in its role as a Data Controller and in supplying or making available to the Company any Personal Data for Processing by the Company in performance of its obligations under an Agreement; and

(b) not instruct the Company to process Personal Data for purposes other than the performance of the relevant Agreement.

1-9B.6 The Customer warrants to the Company that:

(a) it has all necessary appropriate consents and notices in place to enable the lawful transfer of Personal Data to the Company for the duration and purposes of an Agreement.

(b) all Personal Data provided to the Company pursuant to an Agreement will be, to the best of its knowledge, accurate and complete in all material respects, and that the Customer is entitled to provide the same to the Company without recourse to any third party; and

1-9B.7 The Customer acknowledges that the Company is reliant on the Customer for direction as to the extent that the Company is entitled to use and process Personal Data and that such direction will be set out in a Service Level Agreement (or other Contract Document).

1-9B.8 The Company acknowledges that the Personal Data belongs to the Customer.

1-9B.9 The engagement of any sub-processor named in the Order Document or Service Level Agreement for the purposes there stated is authorised by the Customer and shall be a general written authorisation for the purposes of the Data Protection Legislation. Where a sub-processor ceases to trade, becomes insolvent or is in breach of the Data Protection Legislation, the Company may change that sub-processor without reference to the Customer provided that:

(a) it notifies the Customer as soon as practicable; and

(b) the replacement sub-processor is reputable and of such size and standing as to be able to fulfil its obligations to the Company without difficulty.

1-9B.10 If the Customer reasonably objects to the change pursuant to clause 9B.9 it may terminate the relevant Agreement (or where practicable, that part of it dealing with the relevant services) on the provision of 6 months’ notice and (unless it can show that the objection was objectively reasonable in the circumstances) subject to the payment, prior to the expiry of that notice, of all outstanding charges for the balance of the Agreement Term.

1-9B.11 Provided that the Company only undertakes the following activities on an aggregated basis using anonymised data which cannot be linked back to the Customer or any individual, nothing in this clause 9B shall restrict or prevent the Company from recording, retaining and using for monitoring, statistical analysis or marketing purposes:

(a) any information derived from the Customer or its Representatives access to and use of any Software or Services; or

(b) any information or data stored or processed using the Software or Services.

1-9B.12 If either party breaches its obligations under this clause 9B or the Data Protection Legislation it shall indemnify the other from and against any resulting Losses.

1-10. PERSONNEL

1-10.1 Each party shall take all reasonable precautions to ensure the health and safety of the other party’s Representatives while such Representatives are at its premises, and to ensure that its own Representatives observe the other party’s safety rules and procedures (as provided by each party to the other) while such Representatives are on the other party’s premises.

1-10.2 If the employment of any employee of the Customer or any third party is deemed to transfer to the Company by operation of the Transfer Regulations (a “Transferring Employee”), then the Customer shall be liable for and shall indemnify the Company from and against:

(a) all wages, bonuses, benefits, holiday pay, employment benefit costs, redundancy costs and unfair dismissal or discrimination awards and costs in respect of the Transferring Employee and all Losses relating directly or indirectly to the terms and conditions of employment, pensions and life assurance arrangements, health, welfare or any other matters concerning the Transferring Employee or any other claims which the Transferring Employee may have against the Customer or any third party in respect of any period before the transfer of the employment of the Transferring Employee to the Company;

(b) all claims arising out of any breach by the Customer, the Company or any third party of the Transfer Regulations in respect of any Transferring Employee; and

(c) all payments (including redundancy and unfair dismissal or discrimination payments or awards) which the Company may be obliged to make to the Transferring Employee together with all costs (including legal costs) in the event of the dismissal by the Company of the Transferring Employee following the transfer of the employment of the Transferring Employee to the Company.

1-11. SOLICITING OF STAFF

1-11.1 Neither party shall (without the prior written consent of the other party) at any time until the expiry of 12 months after the date of termination of this Agreement utilise the services of, solicit or endeavour to entice away from or discourage from being employed by the other party any employee of the other party whose duties have during the period of 12 months prior to such utilisation, solicitation or endeavour included:

(a) (in the case of an employee of the Company) the provision of any Services under such Agreement; or

(b) (in the case of an employee of the Customer) the Use or implementation of the Product provided under such Agreement.

1-11.2 Each party agrees that if it is in breach of clause 1-11.1, damages may not be an adequate remedy and the party not in breach may wish to apply for an injunction or other form of interlocutory relief or to take other action. Nevertheless each party shall, if in breach of clause 1-11.1, pay on demand to the other party (as is agreed to be a genuine pre-estimate of the loss likely to be suffered by the other party as a result) a sum representing the gross amount paid to the employee concerned during the last 6 months immediately prior to such utilisation, solicitation or endeavour (other than travelling or subsistence) plus the costs incurred by the other party in recruiting a suitable replacement but without prejudice to the other rights and remedies of the other party pursuant to this Agreement.

1-11.3 This clause 1-11 shall not prohibit either party from soliciting or hiring any person who responds to a general advertisement or solicitation, or efforts by any recruiting or employment agencies, not specifically directed at employees of the other party.

1-12. COMPLIANCE WITH THIS AGREEMENT

1-12.1 The Company shall be entitled to take reasonable steps to verify and confirm that the Customer's use of any Software and/or Services complies with the Customer's obligations under this Agreement in relation to such use (including that the Customer is only using any Software to the extent it is licensed to do so).

1-12.2 The steps referred to in clause 1-12.1 may include:

(a) requiring a director or other officer of the Company to provide a certificate confirming its compliance with the terms of this Agreement;

(b) within Software, incorporating routines or executables which will undertake remote inspection and reporting of the extent of the Customer's use of Software; and/or

(c) undertaking a formal audit of the Customer's use of such Software and/or Services (which audit may involve granting the Company and its Representatives the right to enter the Customer’s premises and inspect its records and the use by the Customer of the Software and Documentation, including access to the Software).

1-12.3 The Customer shall provide the Company with such co-operation, information and assistance in relation to any action permitted under clauses 1-12.1 and 1-12.2 as the Company may reasonably require.

1-13. FORCE MAJEURE

1-13.1In this clause 1-13, the expression “Force Majeure” shall mean an event which is beyond the control of an affected party and which such party could not anticipate or mitigate by means of insurance, contingency planning or any other prudent business means. Any event will only be considered Force Majeure if it is not attributable to the wilful act, neglect, default or other failure to take reasonable precautions of the affected party, its agents, employees or contractors. Industrial dispute or action shall not give rise to an event of Force Majeure.

1-13.2 No party shall in any circumstances be liable to the other party for any Losses suffered by the other party by reason of any failure or delay in the performance of its obligations under this Agreement which is due to Force Majeure. Notwithstanding the foregoing, each party shall use all reasonable endeavours to continue to perform, or resume performance of, such obligations for the duration of such Force Majeure.

1-13.3 If either party is unable to perform its obligations under this Agreement due to Force Majeure for a consecutive period of more than three months the other party may terminate this Agreement by notice in writing and the provisions of clause 1-6.4 shall apply.

1-14. ANTI-BRIBERY AND ANTI-SLAVERY

1-14.1 Each party shall:

(a) comply with all applicable laws, statutes, regulations, codes and guidance relating to anti-bribery and anti-corruption ("Anti-bribery Laws"), including the Bribery Act 2010;

(b) not do, or omit to do, any act that will cause the other party to be in breach of the Anti-bribery Laws;

(c) promptly report to the other party any request or demand for any undue financial or other advantage of any kind received by it in connection with the performance of this Agreement;

(d) maintain throughout the term of this Agreement its own anti-bribery policies and procedures to ensure compliance with the Anti-Bribery Laws, provide a copy of such policies and procedures to the other party on request, and enforce such policies and procedures where appropriate.

14.2 Breach of this clause 14 shall be deemed a material breach of this Agreement.

14.3 Each Party shall:

(a) comply with all Applicable Laws relating to anti-slavery including the Modern Slavery Act 2015 ("Relevant Requirements");

(b) not engage in any activity, practice or conduct which would constitute an offence under the Modern Slavery Act 2015 if such activity, practice or conduct had been carried out in the United Kingdom;

(d) have and maintain in place throughout the term of this agreement its own policies and procedures, including adequate procedures to ensure compliance with the Relevant Requirements, and will enforce them where appropriate;

1-15. WAIVER

Failure or neglect by either party at any time to enforce any of the provisions of this Agreement shall not be construed as, neither shall it be deemed to be, a waiver or abandonment of the respective rights of that party nor in any way affect the validity of the whole or any part of this Agreement nor prejudice that party’s rights to take subsequent action.

1-16 SEVERABILITY

If any limitation or provision contained in this Agreement shall be determined invalid, unlawful or unenforceable it shall be severed from the remainder of this Agreement which shall continue to be valid to the extent permitted by law.

1-17. ASSIGNMENT AND THIRD PARTY RIGHTS

1-17.1 The Company shall be entitled to assign the benefit (subject to the burden) of this Agreement to a company which succeeds to the business of the Company as a result of any internal reorganisation reconstruction or amalgamation of the Company or any group of companies of which the Company from time to time forms part.

1-17.2 Save as provided for in clause 1-16.1, neither party may assign, novate, sub licence or otherwise transfer this Agreement or any rights or obligations under it whether in whole or in part, without the written consent of the other party.

1-17.3 This Agreement shall be enforceable by the original parties to it and by their successors in title and permitted assignees.

1-17.4 Save as set out in any Third Party Product Terms, no person may enforce the terms of this Agreement pursuant to the Contracts (Rights of Third Parties) Act 1999 (or any successor legislation).

1-18. ENTIRE AGREEMENT

1-18.1 This Agreement, together with the documents referred to in it, constitutes the entire agreement and understanding between the parties in respect of the matters dealt with in that Agreement and supersedes cancels and nullifies any previous agreement between the parties relating to such matters notwithstanding the terms of any previous agreement or arrangement expressed to survive termination.

1-18.2 Each of the parties acknowledges and agrees that in entering into this Agreement, and the documents referred to in it, it does not rely on, and will have no remedy in respect of, any statement, representation, warranty or understanding (whether negligently or innocently made) of any person (whether party to this Agreement or not) other than as expressly set out in this Agreement as a warranty. The only remedy available to it for breach of the warranties will be as set out in this Agreement.

1-19. GENERAL, NOTICES AND COMMUNICATIONS

1-19.1 Any terms and conditions contained within the Customer’s form of order shall be superseded by the terms of the relevant Agreement.

1-19.2 Any variation of this Agreement shall only be binding if it is in writing and signed by the Authorised Representative of each party.

1-19.3 The Customer will procure that its Associated Companies and agents comply with any restrictions on the Customer under this Agreement (including clauses 1-7, 1-8.1, 1-8.3 and 1-11.1 as if they were a party to this Agreement. The Customer shall be liable for the acts and omissions of its Associated Companies and agents as if they were the acts and omissions of the Customer.

1-19.4 Any notice required or permitted under the terms of this Agreement or required by law shall be in writing in English and shall be delivered in person, sent by first class mail, air mail to the Authorised Representative of the party to whom the notice is being given at the address stated in this MSA. It shall be deemed to have been given upon delivery (if delivered in person), 48 hours after having been posted.

1-20. LAW AND DISPUTE RESOLUTION

1-20.1 If any dispute between the parties about either the interpretation of the provisions of this Agreement or the performance by either of the parties of its obligations under this Agreement cannot be resolved at an operational level, upon the written request of either party, each party will within 3 Working Days after the date of service of such written request appoint a designated representative (being a senior member of staff of the party who does not devote a substantial part of his time to the operation or performance of this Agreement) who will meet with the equivalent representative of the other party to endeavour to resolve such dispute subject to the further provisions of this clause 1-19. Nothing in this clause 1-19 will prevent either party from seeking injunctive or interlocutory relief or interlocutory remedies from the Courts in relation to any dispute

1-20.2 In any attempt to resolve a dispute in accordance with clause 1-19.1:

(a) designated representatives will meet as often as the parties reasonably deem necessary to gather and exchange all information regarding the matter in issue which the parties believe to be relevant to its resolution;

(b) such representatives will discuss the problem and negotiate in good faith in an effort to resolve the dispute without the necessity of any formal proceedings;

(c) during the course of such negotiation, all reasonable requests made by one party to the other for information will be honoured so that each party may be fully advised of the relevant facts. The specific format for such discussions will be left to the discretion of the relevant representatives.

1-20.3 If at any time when the parties are endeavouring to resolve any dispute in accordance with clauses 1-20.1 and 1-20.2, the parties agree that the dispute should be resolved by arbitration, or if a period of 15 Working Days has expired since the service of a written request in accordance with clause 1-20.1 and either party gives the other notice in writing requiring the dispute to be so referred, the parties shall refer the dispute to an arbitrator (whose decision shall, in the absence of manifest error, be final and binding on the parties) in accordance with the Arbitration Act 1996.

1-20.4 If within 5 Working Days of the decision pursuant to clause 1-20.3 to appoint an arbitrator the parties are unable to agree on the arbitrator to be appointed, then the arbitrator shall be determined by the President for the time being of the British Computer Society or his duly appointed deputy having authority to make such appointment on his behalf on the application of either party.

1-20.5 The formation, existence, construction, performance, validity and all aspects whatsoever of this Agreement shall be governed by the laws of England and Wales. The courts of England and Wales have exclusive jurisdiction to settle any disputes arising out of or in connection with this Agreement.

PART TWO – SET UP SERVICES

2-1 CUSTOMER CO-OPERATION

2-1.1 The Customer shall comply with any reasonable requests for co-operation, information and/or assistance made by the Company in relation to any Set Up Services.

2-1.2 Where any Representatives of the Customer who are involved in the receipt of any Set Up Services become aware of any information or documents in the Customer's possession or control which are relevant to such Set Up Services and which are material in that they are reasonably likely to influence the performance or output of such Set Up Services, then the Customer shall promptly notify the Company accordingly.

2-2. CHANGE CONTROL

2-2.1 Either party shall be entitled to request a change to particular Set Up Services by giving the other party notice in writing of such change. Such notice shall include the rationale for the change and a party's best assessment of the likely impact of the change on the parties and any other Services and Software.

2-2.2 A party receiving a notice under clause 2-2.1 shall consider it carefully and in good faith and, within 10 Working Days, shall notify the other party whether it (a) is in agreement with the change, or (b) requires further information or details in relation to the change (on receipt of which it shall consider the change afresh in accordance with this clause 2-2.2, or (c) rejects the change.

2-2.3 Where the parties agree a particular change, they shall execute a change control notice formally recording the terms and details of the change. Until such change control notice is validly executed by both parties, the parties' obligations shall remain as set out in the then current versions of this Agreement.

2-2.4 Where the Customer initiates a Change Control Request it acknowledges that where such a request requires an amendment or deviation from the Specification, additional time and Charges may be required to effect such a request.

2-3. ACCEPTANCE

2-3.1 Once the Company has completed its performance of any Set Up Services, the Customer shall (if it so requires) have a period of 10 Working Days (an "Acceptance Period") to review the same.

2-3.2 If the Customer does not raise any objections, issues or concerns in respect of the performance of the Set Up Services during the Acceptance Period, it will (a) be deemed to be satisfied with and otherwise to have accepted such Set Up Services, and (b) not be entitled to raise them subsequently (under clause 1-3 in Part One or otherwise).

2-3.3 If the Customer notifies the Company of any comments or concerns in relation to the performance of the Set Up Services during the Acceptance Period and such comments or concerns are a result of the Set Up Services failing to comply with the terms of the relevant Agreement, the Company shall review such comments and concerns and shall re-perform those parts of the Set Up Services which fail to comply with the terms of the relevant Agreement.

2-4. INTELLECTUAL PROPERTY RIGHTS

2-4.1 To the extent any Software, Specification or Documentation is developed or created as part of any Set Up Services, the Company hereby grants the Customer the following licences in relation to it:

(a) where such Software is for use in conjunction with any Product, a licence to Use such Software on the same terms and to the same extent as the Company grants the Customer a licence to Use such Product;

(b) where such Specification or Documentation is an amendment of or addition to any existing Specification or Documentation licensed to the Customer under this Agreement, a licence to use such Specification and Documentation on the same terms and to the same extent as the Company grants the Customer a licence to use such existing Specification or Documentation; and

(c) in all other cases, a non-exclusive, non-transferable licence to use such Software, Specification or Documentation for the Customer's own internal business purposes for the Term, but not for any other purposes and excluding any right of sub-licence.

2-4.2 Nothing in this clause 2-4 is intended to override or contradict the provisions of clause 1-7.

IMPLEMENTATION SERVICES

2-5. PROJECT MANAGEMENT

2-5.1 The Customer has overall responsibility, with the Company’s assistance, for the process of installing and implementing the Software for live use (the "Implementation Project").

2-5.2 To assist the Customer in the Implementation Project, the Company shall provide the Implementation Services to the Customer in the Implementation Period on the terms and conditions of the relevant Agreement. In providing the Implementation Services, the Company will determine the allocation of its Representatives and provide appropriately experienced staff. The configuration of the Software will be carried out by the Company’s Representatives (as part of the Implementation Services) on behalf of the Customer and in accordance with the Customer’s guidance which will be clearly and promptly given.

2-5.3 Subject to clause 2-5.1, the Company’s Project Manager will lead and manage the Implementation Project. This will include the scheduling of work assignments for each party's Representatives to deliver the Implementation Project, which will be subject to approval by the Customer’s Project Manager (not to be unreasonably withheld or delayed).

2-5.4 If the Customer cancels or postpones an agreed work assignment less than fifteen clear Working Days prior to the scheduled date, the Company reserves the right to charge an administration charge equal to 50% of the Charges for representing its lost revenue from the wasted time of its Representative allocated to perform the Implementation Services in that work assignment.

2-5.5 The Customer’s Project Manager will be responsible for managing the Customer’s contribution to and overall responsibility for the Implementation Project. In connection with the Implementation Project, the Customer shall at no cost to the Company:

(a) provide all the Company's Representatives when at the Site with such facilities, equipment and media as may be reasonably necessary for the provision of the Implementation Services;

(b) provide appropriately qualified and experienced staff in sufficient numbers to fulfil the Customer’s tasks as part of the Implementation Project;

(d) promptly provide the Company’s Project Manager and the Company's Representatives with such information and documents as they may reasonably request, including making decisions on the Implementation Project without undue delay.

2-6 CONFIRMATION

2-6.1 The confirmation process set out in this clause 2-6 is intended to ensure that an Implementation Project has been appropriately completed before the Company transitions the Software into routine support. This clause 2-6 is without prejudice to a party's other rights and remedies under an Agreement.

2-6.2 When the Company is satisfied that the Software has, in its reasonable opinion, been efficiently and correctly configured, it will issue the Customer with a confirmation to that effect.

2-6.3 If the Company is unable to issue a confirmation under clause 2-6.1 in respect of the Software, it may recommend one or more of the following:

(a) further changes to the configuration of the Software;

(b) the provision of further services by the Company; and/or

and may also suspend the provision of any other Services until it is able to issue such a confirmation under clause 2-6.1.

2-6.4 The Company may revoke a confirmation issued under clause 2-6 at any time if it reasonably considers that changes have been made to the configuration of the Software, which have an adverse impact on the provision of any other Services. For that purpose, the Customer will allow the Company access to the Software on reasonable notice during Normal Working Hours and the Company may elect to do so either at the Site or remotely. If a confirmation is revoked, the Company shall again have the options as set out in clause 2-6.2.

CONSULTANCY SERVICES AND TRAINING SERVICES

2-7. CONSULTANCY SERVICES

In providing any Consultancy Services, the Company will determine the allocation of its Representatives and provide appropriately experienced staff for the number of Working Days stated in the Schedule.

2-8. TRAINING SERVICES

In providing any Training Services, the Company will determine the allocation of its Representatives and provide appropriately experienced staff either (a) for the number of Working Days stated in the Schedule, or (b) to deliver the specific training sessions listed in the Schedule on the dates specified in the Schedule.

TERMS AND CONDITIONS PART THREE: PRODUCT RENTAL

3-1. DEFINITIONS AND INTERPRETATION

3-1.1 In this Part Three, the following expressions shall have the following meanings:

“Country of Use” means the country or countries specified in the Schedule;

“Current Sub-Release” means the most recent mandatory Sub-Release, or a subsequent non-mandatory Sub-Release which the Customer has in fact implemented;

“Customer Support Contact” means a member of the Customer's personnel who is designated as such under, and meets the criteria set out in, clause 3-5.2;

“Employee” means any person in respect of whom employment records are kept by the Customer or an Associated Company using the Product, including past or current employees, pensioners whether deferred or in receipt of payment, and non-employed office holders;

“Fix" means an amendment to the Product which is not classified as a Sub Release;

"Legislative Change" means an addition to or change in Government legislation (including Acts of Parliament and Statutory Instruments) in the UK and Ireland, but excluding (a) any additions or changes to any other form of regulation, any guidance or any scheme rules, and (b) additions or changes falling within clause 3-6.7;

“Malfunction" means any failure of the Product to operate (in the Company's reasonable opinion) in accordance with the Product Documentation;

"New Release" means, in relation to a given Product, a version of that Product offered by the Company which contains significant differences of functionality from the previous version or release and which is designated as a New Release by the Company;

“Previous Release” means the release of the Product in use by the Customer prior to the adoption of a New Release;

“Purpose of Use” means the use for which the Company has licensed the Product and Product Documentation to the Customer as set out in the relevant Schedule;

"Service Desk" means the facility made available by the Company for the submission to it of Service Requests;

“Service Request" means any request by a Customer Support Contact for assistance in operating the Product, including the notification of a Malfunction;

"Sub-Release" means, in relation to a given Product, a partial re-issue of that Product by the Company from time to time in order to effect legislative upgrades and minor enhancements or corrections to that Product;

“Support Hours" means the hours between 09.00 and 17.00 hours on a Working Day; and

“Technical Assistance Call" means a call of not more than 15 minutes duration by a Customer Support Contact to the Service Desk during which Service Desk personnel provide technical advice or assistance by telephone.

“User Guides” means a summary of the features and functionality of the Product and/a particular release of it, as such is made available and updated from time to time through the Company’s customer extranet;

3-2. SPECIFICATION

The specification for the Product is as contained in the Product Summary for the relevant Sub-Release.

3-3. PRODUCT AVAILABILITY

3-3.1 The Company shall ensure that at least one copy of the Product is made available for the Customer at the Company’s Data Centre as soon as reasonably practicable after the Company receives payment of the Initial Set Up Charge for such Product.

3-3.2 Only the Customer through its direct employees, or the Company or its Representatives on behalf of the Customer, may install, implement or configure the Product or provide support services for the Product. The installation, implementation, configuration or support of the Product by any other person is not permitted.

3-4. LICENCE RESTRICTIONS

3-4.1 The licence to Use the Product and the Product Documentation is granted on the terms and conditions of this Agreement (including the restrictions set out in this clause 3-4).

3-4.2 The licence of the Product and Product Documentation shall commence on the Product being made available under clause 3-3.1 and shall continue until it terminates in accordance with clause 3-4.9.

3-4.3 Except as expressly permitted by this Agreement, the Customer may use the Product and the Product Documentation for processing the Data solely for its own internal business purposes in the Country of Use and for no other purposes whatsoever (but this does not prohibit remote access to the Product from outside the Country of Use). Without limitation, the Customer shall not permit the Use, implementation, configuration or support of the Product or Product Documentation by any third party, agent or subcontractor, nor shall it use the Product or Product Documentation on behalf of or for the benefit of any third party in any way whatsoever, including for the purpose of operating a bureau, rental or facilities management service.

3-4.4 The Customer may use the Product to provide payroll and HR services to an Associated Company for its own internal business purposes and may also permit the use of the Product by an Associated Company in connection with those services (subject always to clause 3-4.5).

3-4.5 The licence of the Product is limited to its Use in storing and/or processing Data in relation to the number of Employees stated in the Schedule (the “Employee Maximum”). If the Customer wishes to increase the Employee Maximum (including as a result of the provision of services to an Associated Company), it shall promptly notify the Company in writing and seek its agreement to the increase. The Company will not unreasonably refuse to agree the increase but an additional Service Charge will be payable thereafter in relation to any agreed increase in the Employee Maximum.

3-4.6 In some cases, the Customer may need to obtain third party software to make full use of certain functionality and capabilities of the Product. Where the Customer obtains such third party software from the Company, it shall be licensed as a Third Party Product.

3-4.7 The Third Party Products are licensed by the Company on the relevant terms and conditions for the licensing of the same as applicable from time to time which are displayed on the Company’s website, which shall be the Third Party Product Terms. The Customer will reimburse the Company the amount of all losses (including claims from any third party supplier of the Third Party Product), sustained or incurred by the Company in connection with any failure by the Customer to comply with such terms and conditions. If there is any conflict between the provisions of this Agreement and the terms and conditions of licensing Third Party Products, for the purposes of this clause 1-6.2 only the latter will prevail.

3-4.8 Except as expressly permitted by this Agreement, the Customer shall not (whether itself or through any Associated Company, agent or third party):

(a) copy, sell, transfer, lease, license, sublicense or otherwise deal (in whole or in part) with (i) the Product, the Product Documentation or the Specification, (ii) any variations, modifications, copies, releases, versions or enhancements thereof, or (iii) any supporting software; or

(b) have any supporting or other software or program written or developed for it based on any confidential information supplied to it by the Company or its Representatives.

3-4.9 The Customer will keep full, accurate and up to date records in order to enable the Company or its Representatives to assess the number of Employees whose data is stored and/or processed on or by the Product at any time.

3-4.10 On termination of this Agreement, subject to clauses 1-6.4 and 1-6.5 in Part One any licence to use the Product and Product Documentation (and all copies thereof) granted under this Agreement shall come to an end.

3-5. SERVICE REQUESTS

3-5.1 A Service Request may be made to the Company by telephone, e-mail to the Service Desk during Support Hours, or via the Company’s customer extranet at any time, and by no other method. A Service Request will be deemed to be received by the Company at the time of the call, e-mail or extranet input if made or sent during Support Hours, or at 9am on the next Working Day if made or sent outside Support Hours.

3-5.2 The Customer shall designate no more than 5 members of the Customer's personnel as Customer Support Contacts, and shall ensure that each Customer Support Contact is a reasonably competent user who has been adequately and appropriately trained in the use of the Product. Service Requests may only be made by Customer Support Contacts and not by any other member of the Customer's personnel.

3-5.3 Where a Service Request concerns a Malfunction or suspected Malfunction, the provisions of clause 3-7 shall apply.

3-5.4 Where a Service Request does not concern a Malfunction or suspected Malfunction, the Company shall be entitled to treat it as a Technical Assistance Call. The Company will carry out 25 Technical Assistance Calls for the Customer at no additional cost during each consecutive period of six months during the period of the relevant Agreement. Thereafter, the Customer may purchase additional Technical Assistance Calls in blocks of at least 25, either in advance as set out in the Schedule or from time to time.

3-5.5 The Company will not be obliged to provide services, advice, assistance or guidance beyond (a) the correction of Malfunctions in accordance with clause 3-7, or (b) the provision of Technical Assistance Calls in accordance with clause 3-5.4. Where the Company elects to do so, it may charge the Customer for such services, advice, assistance or guidance at its prevailing rates from time to time.

3-6. SUB-RELEASES, FIXES AND CHANGES IN LEGISLATION

3-6.1 The Company shall deliver to the Customer such Sub-Releases and Fixes as the Company shall from time to time make available to its customers. The Customer shall (unless otherwise agreed) be responsible for installing and using such Sub Releases and Fixes.

3-6.2 The Company shall provide the Customer with all documentation which the Company deems necessary for the utilisation of any Sub Releases and Fixes delivered to the Customer by the Company from time to time.

3-6.3 The Company shall use its reasonable endeavours to amend, replace or add to the Product as may be required to give effect to Legislative Changes from the date when the Legislative Change takes effect, but not further or otherwise. Any such amendment, replacement or addition to the Product will usually be effected by the issue of a Sub-Release.

3-6.4 If a Sub-Release issued by the Company from time to time is designated by the Company as "mandatory", the Customer is required to implement the Sub Release within the period indicated by the Company, which shall not be less than 90 days from when the Company gives written notice. Unless designated as "mandatory", the Customer is not obliged to implement a Sub-Release. The Company is not obliged to provide any Product Support for a Product if a mandatory Sub-Release is not implemented within the required period.

3-6.5 The Company may at its discretion incorporate a Legislative Change in any Sub Release, in whole or in part, for whichever application area it considers appropriate, irrespective of whether that application area is included in the Product.

3-6.6 If the nature of a Legislative Change as enacted is such that the Company must incur substantial expense in modifying the Software to provide new functionality, then such functionality shall be made available to the Customer as a new Sub-Release or an additional module of the Software at such reasonable extra cost (if any) as the Company shall from time to time determine. In such cases, the Company will use reasonable endeavours to provide the new functionality in sufficient time to enable the Customer to install and implement it before the Legislative Change takes effect but shall not be liable if despite such endeavours it is unable to do so.

3-6.7 In providing Product Support, the Company shall not be obliged to take account of any additions or changes to local or national collective bargaining or similar arrangements whether statutory or otherwise or to any extra-statutory concessions, arrangements or scheme rules which are industry-specific or sector-specific and not applicable to employees in general in a particular jurisdiction. The Company may make a separate annual charge for changes to the "Regulatory Returns" module, if included.

3-7. MALFUNCTIONS

3-7.1 The Company shall assist the Customer with a Malfunction or possible Malfunction by telephone or e-mail via its customer extranet during the Support Hours. Specifically, the Company shall:

(a) respond to Service Requests concerning Malfunctions, and classify and prioritise them in accordance with the classification criteria set out below; and

(b) use reasonable endeavours to correct, or provide an alternative solution or a workaround for, Malfunctions within the target time periods set out below.

Category/Classification Criteria/Target Time Period

Category A Classification Criteria:- A Malfunction, which renders the Product inoperable such that a critical business or operational function cannot be met. Target Time Period:- The Company's target shall be to correct such Malfunction or provide an "alternative solution" within 8 Support Hours from notification. During this time, the Company shall provide the Customer with updates on progress at agreed intervals.

Category B Classification Criteria:- A Malfunction, which renders part of the Product inoperable such that an imminent business or operational function cannot be met. Target Time Period:- The Company's target shall be to correct such Malfunction or provide an "alternative solution" within 5 Working Days from notification

Category C Classification Criteria:- A Malfunction which has an impact on the functioning of the Product where either (a) a required business deadline is known and has been notified, or (b) the Company has previously provided an "alternative solution" to a Malfunction in category A or B. Target Time Period:- The Company's target shall be to correct such Malfunction within 30 Working Days from notification.

Category D Classification Criteria:- A Malfunction where a function of the Product operates other than in accordance with the description of the Product in the applicable Documentation. Target Time Period:- The Company's target shall be to correct such Malfunction within 120 Working Days from notification, or at its discretion in a future Sub-Release.

Category E Classification Criteria:- Any other fault with the Product of a minor or cosmetic nature. Target Time Period:- The Company's target shall be to correct such fault in a future Sub-Release.

3-7.2 Where the Customer disagrees with the classification of a particular Service Request, it shall be entitled to escalate the matter within the Company through the Service Desk.

3-7.3 The Company reserves the right to decline to correct a Malfunction (other than one classified as Category A or B) if it deems it uneconomic to so, or contrary to the benefit of the majority of its customers.

3-8. NEW RELEASES

3-8.1 New Releases of the Software may be made available from time to time. In such cases, the Customer may opt to implement the New Release within such period as the parties may reasonably determine.

3-8.2 Once delivered to the Customer, a New Release shall be deemed to form part of the Software for the purposes of the MSA. The previous Release shall cease to be licensed or supported once the certificate referred to in clause 1-5 is signed and returned by the Customer.

3-9. PRODUCT SUPPORT STANDARDS AND EXCLUSIONS

3-9.1 The Customer shall:

(a) use only the Current Sub-Release;

(b) (save where the Software is hosted by the Company) ensure that the Software is only used on a computer which complies with the Host Systems Requirements, in a proper manner and only by competent trained employees or persons under their supervision;

(c) notify each software fault through the Company as it arises, and supply the Company with a documented example of such fault;

(d) co operate fully with the Company in diagnosing any software fault, including by permitting access to the Customer Host System by the Company;

(e) provide remote access to the Software on the Customer Host System (Where the Customer’s data is not Hosted at one of the company’s datacentres);

(f) provide a right of access to the Company to inspect the Customer Host System (where the customer’s data is not Hosted at one of the Company’s datacentres);

(g) make available to the Company free of charge all reasonable facilities and services which are required by the Company to enable it to provide Product Support, including computer runs, memory dumps, telecommunications links, printouts, data preparation and access to the Installation Address;

(h) not request, permit or authorise anyone other than the Company or its Representatives to provide any support or maintenance services in respect of the Product;

(i) keep full security copies of the Software, and of the Customer's data and other computer programs it uses, in accordance with best computing practice (Where the Customer’s data is not Hosted at one of the Company’s datacentres,) ; and

(j) provide, as required by the Company from time to time, a written statement or completed questionnaire concerning the Customer's operation of the Software on the Host System (Where the Customer’s data is not Hosted at one of the Company’s datacentres).

3-9.2 All materials relating to the Product Support will be delivered or sent to the Customer in printed or electronic form in accordance with the Company's standard formats including (at the Company’s option) over the internet.

3-9.3 The Company shall not be obliged to provide:

(a) support for Malfunctions caused by using the Software otherwise than in accordance with the Product Documentation;

(b) support or maintenance of software, accessories, attachments, computer hardware, systems or other devices not supplied by the Company;

(d) support for Service Requests or Malfunctions caused directly or indirectly by operator error or omission;

(e) support for any Sub-Release other than the Current Sub-Release; or

(f) support for any part of the Software which has been installed or implemented by a third party without the permission of the Company.

3-10 SUSPENSION, AMENDMENT AND TERMINATION OF PRODUCT SUPPORT

3-10.1 No Product Support shall be provided by the Company while the Customer is in default of its payment obligations to the Company under any agreement between the Company and the Customer, provided that the Company has given the Customer 7 days' notice in writing to that effect.

3-10.2 No refund of any Charges shall be made on termination or suspension of any Product Support in accordance with this clause 3-10.

3-10.3 The details of Product Support and the provisions of clauses 3-5 to 3-9 may be amended at any time upon 90 days' written notice by the Company to the Customer, provided that such amendment does not materially reduce the level of Product Support provided.

3-10.4 The Company may suspend its obligations to provide Product Support by giving 7 days' notice in writing to the Customer to that effect if the Customer:

(a) fails to adopt and implement a New Release within the period required by clause 3-8.1; or

(b) fails to comply with any of its obligations under clause 3-9.1.

PART FOUR – HR OUTSOURCING

4-1. THE CUSTOMER'S OBLIGATIONS

4-1.1 The Customer shall not, and shall ensure that its Associated Companies shall not:

(a) interfere with the provision of the Managed Services;

(b) knowingly or recklessly engage in spamming, mail bombing, spoofing or any other fraudulent, illegal or unauthorised attack;

(c) knowingly or recklessly introduce into or transmit through the Product any virus, worm, trap door, back door, timer, clock, counter or other limiting routine, instruction or design; or

(d) store, distribute or transmit using the Product any material which is unlawful, harmful, threatening, defamatory, obscene, harassing or racially or ethnically offensive, facilitates violence, discrimination based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activities.

4-1.2 The Customer shall provide all co-operation, information and assistance necessary to enable the Company to meet its obligations under an Agreement, including complying with any reasonable requests for co-operation, information and/or assistance made by the Company in relation to any Managed Services.

4-1.3 The Customer shall ensure that those of its Representatives who are allocated to liaise with the Company on matters related to the Managed Services are adequately trained and familiar with the requirements of the Agreement.

4-1.4 Where any Representatives of the Customer who are involved in the receipt of any Managed Services become aware of any information or documents in the Customer's possession or control which are relevant to such Managed Services and which are material in that they are reasonably likely to influence the performance or output of such Managed Services, then the Customer shall promptly notify the Company accordingly.

4-1.5 The Customer acknowledges that the provision of the Managed Services under an Agreement is dependent on the timely fulfilment by the Customer of its obligations under that Agreement. Consequently, to the extent that the Customer fails to fulfil any such obligations in whole or in part or, where appropriate, by the date specified in the Agreement for such fulfilment and such Customer failure causes the Company not to fulfil its obligations under an Agreement:

(a) the Company shall not be liable for any such failure; and

(b) any date or time period set out in an Agreement for the fulfilment by the Company of any of its obligations shall be extended by a period of time equal to any delay caused by such Customer failure.

4-2. SERVICE LEVEL AGREEMENT

4-2.1 The Service Level Agreement(s) attached to this Agreement set out the detailed operational procedures for the performance by the Company and the Customer of their respective obligations under the Agreement in respect of the Managed Services. Each party shall observe and comply with the terms of such Service Level Agreement(s).

4-2.2 Notwithstanding clause 1-7.1, in the event of any conflict between the provisions of the Service Level Agreement and the provisions of this Managed Services Schedule, the provisions of this Part Four shall take precedence.

4-2.3 Changes to the Service Level Agreement may be made by the mutual agreement of both parties. Any changes to the Service Level Agreement will be made in accordance with the procedures set out in clause 4-4.

4-3. MANAGEMENT AND MEETINGS

4-3.1 Each party shall promptly notify the other in writing of (a) its nominated Representative for all purposes connected with the day to day management of the Managed Services in accordance with the Service Level Agreement, and (b) any changes to that nomination from time to time.

4-3.2 The Company’s nominated Representative or his substitute shall attend review meetings as outlined in the Service Level Agreement. The purpose of these meetings is to discuss any concerns as to the nature or quality of the Managed Services and to agree corrective action plans which shall be put into effect within a reasonable period agreed between the parties.

4-3.3 If either party calls a meeting (other than a regular meeting referred to in clause 4-3.2 above) to discuss or review any matter relating to this Agreement, then the following rules shall apply to the conduct of that meeting:

(a) the party calling the meeting shall give to the other no less than five Working Days’ written notice of the date and time of the meeting setting out the matters for discussion;

(b) the other party may also give written notice of matters for discussion at the meeting no later than three Working Days before the meeting; and

(c) each party shall ensure that the persons attending the meeting on its behalf have the authority and knowledge to resolve at the meeting those matters set down for discussion.

4-3.4 If the Customer requests such a meeting to be held, the Company may charge the Customer for the attendance of any of its representatives at a meeting held in accordance with clause 4-3.3 above at the Company’s then prevailing rates appropriate to the individuals attending the meeting.

4-4. CHANGE CONTROL

4-4.1 Either party shall be entitled to request a change to particular Managed Services by giving the other party notice in writing of such change. Such notice shall include the rationale for the change and a party's best assessment of the likely impact of the change on the parties and any other Services and Software.

4-4.2 A party receiving a notice under clause 4-4.1 shall consider it carefully and in good faith and, within 10 Working Days, shall notify the other party whether it (a) is in agreement with the change, or (b) requires further information or details in relation to the change (on receipt of which it shall consider the change afresh in accordance with this clause 4-4.2, or (c) rejects the change.

4-4.3 Where the parties agree a particular change, they shall execute a change control notice formally recording the terms and details of the change. Until such change control notice is validly executed by both parties, the parties' obligations shall remain as set out in the then current versions of this Agreement.

4-4.4 Where the Customer initiates a Change Control Request it acknowledges that where such a request requires an amendment or deviation from the Specification, additional time and Charges may be required to effect such a request.

4-5. INTELLECTUAL PROPERTY RIGHTS

4-5.1 To the extent any Software or Documentation is made available to the Customer as part of any Managed Services, the Company hereby grants the Customer a non-exclusive, non-transferable licence to use such Software or Documentation for the Customer's own internal business purposes for the Term, but not for any other purposes and excluding any right of sub-licence.

4-5.2 Nothing in this clause 4-5 is intended to override or contradict the provisions of clause 1-7.