Terms & Conditions For The Use Of FuseMetrix
Last updated: 8th February 2018
Fusemetrix Group Limited (the Supplier), provides a service consisting of internet access to application software at its remote computer location. You, (the Customer), wishes to use the Supplier's services in its business operations. The Supplier has agreed to provide and the Customer has agreed to take and pay for the Services subject to these Terms and Conditions.
By continuing to use any the Services, the Customer acknowledges and agrees to be bound by these Terms and Conditions. If you do not agree to these Terms and Conditions you should contact the Supplier and discontinue any use of the Services.
The parties agree as follows:
1. CHANGES TO THESE TERMS AND CONDITIONS
The Supplier may modify or amend these Terms and Conditions from time-to-time, at any time by reasonable notice. The Supplier will post notification of such changes on its website.
Any such amendments will become effective fourteen (14) days after they are posted on the website. If you do not agree to any such changes, you should inform the Supplier.
If the Customer does not wish to proceed with receiving the Services on the basis of any such amended Terms and Conditions, then, subject to all outstanding Fees having been paid to the Supplier, the Customer may terminate the agreement for Services by written notice to the Supplier and the rights and obligations (other than those stated to survive termination) of both parties shall terminate and be of no future effect and the provisions of clause: Term and Termination, shall apply.
2. DEFINITIONS AND INTERPRETATION
The definitions and rules of interpretation in Appendix 1 apply to these Terms and Conditions.
3. HOSTING SERVICES, MAINTENANCE AND SUPPORT
1. In consideration for the payment of the Fees by the Customer in accordance with these Terms and Condition, the Supplier shall perform the Services for the Customer. The Service Level Arrangements shall apply thereto.
2. In relation to Software:
the Supplier hereby grants to the Customer on and subject to these Terms and Conditions a non-exclusive licence to access the Software through the Hosting Services and to use the Software for the Customer's business purposes. The licence shall be personal to the Customer and it shall not be entitled to assign, sub-licence or deal in any other way with in the licence;
the Customer shall use reasonable endeavours to ensure that it does not store, distribute or transmit any material through the Hosting Services that is unlawful, harmful, threatening, defamatory, obscene, harassing or racially or ethnically offensive; facilitates illegal activity; depicts sexually explicit images; or promotes unlawful violence, discrimination based on race, gender, colour, religious belief, sexual orientation, disability, or any illegal activities;
3. and the Customer shall not:
attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form any of the Software, except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties; or
use the Software or Hosting Services to provide services to third parties.
4. CUSTOMER DATA
The Supplier shall follow the archiving procedures for Customer Data as described in Schedule 2.
In the event of any loss or damage to Customer Data, the Supplier's obligations shall be limited to using reasonable endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by the Supplier in accordance with the archiving procedure described in Schedule 2.
5. SUPPLIER'S OBLIGATIONS
The Supplier undertakes that the Services will be performed with reasonable skill and care.
Save as in the circumstances noted below, the Supplier shall provide Software that conforms to the Software Specification in all material respects. This undertaking shall not apply to the extent of any non-conformance which is directly or indirectly caused by modification or alteration of the Software by any person other than the Supplier or the Supplier's authorised agents. If the Software does not conform with the Software Specification in a material respects, the Supplier will, at its election and its expense:
correct such non-conformance so that the Software conforms with the Software Specification in a material respects,
provide the Customer with an alternative means of accomplishing the relevant level of performance, or
terminate the agreement with the Customer with immediate effect and pay to the Customer any monies received in respect of Services that have either not been performed at that date or which have not been performed to the level required by these Terms and Conditions, and where the Supplier undertakes one of the above actions, the Supplier shall incur no liability in relation to any such non-conformance.
6. CUSTOMER'S OBLIGATIONS
1. In order for the Supplier to be able to provide the Services, the Customer shall, promptly and without charge to the Supplier:
co-operate with the Supplier:
a.in relation to the performance of the Supplier's obligations hereunder; and
in complying with all statutory and other lawful obligations and requirements in respect of the Services, from time to time.
provide the Supplier with all relevant data and information within the Customer's possession or control, necessary for the Supplier to perform the Services in accordance with these Terms and Conditions and applicable law, including but not limited to, Customer Data, security access information and software interfaces to the Customer's other business applications;
provide such personnel assistance as may be reasonably requested by the Supplier from time to time;
appoint a member of staff to be the Customer's Project Manager, who shall have the authority to contractually bind the Customer on all matters relating to these Terms and Conditions and the Services and shall provide their name and contact details to the Supplier; and
carry out all other Customer responsibilities and obligations set out in these Terms and Conditions including any of the Schedules.
2. In the event of any delays in the Customer satisfying its obligations noted above, the Supplier may adjust any timetable or delivery schedule agreed with the Customer as reasonably necessary.
7. SUPPLY OF SERVICES TO AFFILIATES OF THE CUSTOMER
1. In consideration of any Services being supplied to Affiliates of the Customer at the request of the Customer (as the Customer hereby acknowledges):
any Services supplied to an Affiliate of the Customer shall be deemed to be supplied to that Affiliate as a "˜Customer' pursuant to these Terms and Conditions.
in such circumstances, the Customer shall, as primary obligations of it, procure that any such Affiliate shall duly observe and perform all obligations of a Customer under these Terms and Conditions;
if and whenever any such Affiliate shall be in default in the payment when due of any amount payable to the Supplier for Services and within two Business Days after being given notice to that effect by the Supplier, the Customer shall pay to the Supplier all amounts then so payable by such Affiliate as though the Customer instead of such Affiliate was expressed to be the principal obligor and not surety;
any failure by any such Affiliate to undertake the Customer's obligations, shall be deemed to be a direct breach of these Terms and Conditions by the Customer; and
the Customer shall indemnify and keep indemnified the Supplier on demand against all losses, liabilities and costs (including legal fees) which the Supplier may incur in collecting any amount payable by any such Affiliate or the Customer and referred to in this clause.
2. The Customer's undertakings in this clause shall be continuing obligations and shall remain in full force and effect until the discharge in full of the obligations of any such Affiliate, and shall not be satisfied by any intermediate satisfaction of the whole or any part of those obligations.
8. FEES, CHARGES AND PAYMENT
The Customer shall pay to the Supplier the Fees, together with any other fees relating to Services as agreed between the Customer and the Supplier, which shall be paid in accordance with the provisions of this clause, and in accordance with any payment schedule agreed with the Supplier, including any deposit agreed to be paid by the Customer.
Following the earlier of the first anniversary of the Effective Date, the Fees shall increase each year by an amount equal to the annual RPI increase (if any) on the previous 1 April.
The Customer agrees that the Supplier may increase the Fees by a different amount should the Supplier feel that the prevailing costs of its business require it.
All Fees shall be paid within 30 days of the date of the invoice in respect of the same.
All amounts and fees stated or referred to in these Terms and Conditions are exclusive of value added tax ("VAT").
If VAT is chargeable on any Services and the Supplier is required to account for the VAT, the Supplier may increase the amount payable for those Services by the amount of VAT for which the Supplier is required to account. In such circumstances, and if reasonably requested to do so by the Supplier, the Customer shall promptly provide the Supplier with details of its VAT registration number and any other information as is reasonably requested in connection with the Supplier's VAT reporting requirements.
9. CHANGE CONTROL
1. If the Supplier or the Customer requests a change to the scope or execution of the Services, the Supplier shall, at its election, provide a written estimate to the Customer of:
the likely time required to implement the change;
any variations to the Fees arising from the change; and
any other impact of the change on the terms of supply of Services.
2. If the Customer wishes the Supplier to proceed with the change on the basis of such estimate, the Supplier has no obligation to do so unless and until the parties have agreed in writing the necessary variations to its Fees, and any other relevant terms of supply of Services to take account of the change.
10. PROPRIETARY RIGHTS
1. All Intellectual Property Rights in the Software or which arise in the course of the Services, shall belong to and remain vested in the Supplier; and the Customer shall not:
copy or adapt the whole or any part of the Software;
assign, transfer, sell, lease, rent, charge or otherwise deal in or encumber the Software; or
remove or alter any copyright or other proprietary notice on the Software.
11. DATA PROTECTION
1. The Supplier may be obliged to comply with applicable data protection legislation and regulation from time to time (Data Protection Laws), and may need to ask the Customer to assist it in complying with such requirements.
2. The Customer confirms and agrees that, on its own behalf and on behalf of its Affiliates that receive the Services, notwithstanding any confidentiality undertakings, the Supplier:
may be required to request from the Customer, and the Customer shall provide, certain information and documentation;
shall be entitled to retain such information; and
shall be entitled to make disclosures of Customer Data or other information held by it pursuant to this clause; and shall be permitted to deal with any such Customer Data and information, in each case, to the extent required by Data Protection Laws.
3. The Supplier shall not be liable to the Customer for any delay in the performance of, or any failure to perform, the Services which may be caused by the Supplier's duty to comply with such requirements.
12. FORCE MAJEURE
Save as otherwise provided in these Terms and Conditions, neither the Supplier nor the Customer will be responsible to the other party for any failure or delay in performing its obligations if the failure or delay is caused by an event with could not reasonably have been foreseen and avoided and is beyond the other's control including, but not limited to, governmental actions, abnormal weather conditions, war, civil commotion, acts of terrorism, sabotage, cyber-attack, disruption to national or international IT infrastructure, acts of God, fire, floods, earthquakes or any other similar cause (a Force Majeure Event). The affected party shall at all times following the occurrence of such an event, use reasonable endeavours to prevent or mitigate the effects of any such event.
Each party agrees to give notice to the other upon becoming aware of a Force Majeure Event impacting its obligations, such notice to contain details of the circumstances giving rise to the Force Majeure Event.
1. The Supplier and the Customer may be given access to Confidential Information from the other in order to perform its obligations. A party's Confidential Information shall not be deemed to include information that:
is or becomes publicly known other than through any act or omission of the receiving party or its Affiliates or agents; or
was in the other party's lawful possession before the disclosure; or
is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
is independently developed by the receiving party, which independent development can be shown by written evidence; or
is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
2. The Supplier and the Customer shall hold the other's Confidential Information in strict confidence and, unless required by law, court, or regulatory or administrative body, not make the other's Confidential Information available to any third party, or use the other's Confidential Information for any purpose other than the implementation of Services.
3. The Supplier and the Customer shall take reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees, Affiliates or agents in violation of these Terms and Conditions.
4. For the avoidance of doubt, nothing in these Terms and Conditions shall prevent the Supplier from using any general concepts, ideas, know-how, methodologies, processes, techniques or algorithms which were developed or disclosed in connection with the provision of Services, provided that in doing so the Supplier does not breach its obligations of confidentiality hereunder.
5. This clause shall survive termination of the agreement between Customer and Supplier, however arising.
1. In the event of any claim against the Customer, its officers, directors and employees that the Software infringes any patent, copyright, database right or right of confidentiality, the Customer shall:
give prompt written notice of any such claim to the Supplier;
grant to the Supplier, if it so requests, sole authority to defend or settle the claim; and
provide reasonable co-operation to the Supplier in the defence and settlement of such claim.
2. In the defence or settlement of the claim, the Supplier may obtain for the Customer the right to continue using the Software or replace or modify the Software so that it becomes non-infringing. In such circumstances, the Customer shall be obliged to modify its use of the Software in compliance with such changes.
3. Notwithstanding the preceding provisions of this clause, and for the avoidance of doubt, the Supplier shall have no liability if the alleged infringement arises directly or indirectly, from:
a modification of the Software by anyone other than the Supplier; or
the Customer's use of the Software after notice of the alleged or actual infringement from the Supplier or any appropriate authority.
4. Nothing in this Clause shall exclude or limit the Customer's obligation to take reasonable steps to mitigate any losses suffered.
15. LIMITATION OF LIABILITY
This clause sets out the entire financial liability of the Supplier and the Customer, respectively, (including any liability for the acts or omissions of its employees, agents and sub-contractors) in respect of all claims under or in connection with these Terms and Conditions and the supply of Services, including without limitation: in contract, including any breach of these Terms and Conditions; any use made by the Customer of the Services, the Software, or any part of them; and any representation or misrepresentation, statement or tortious act or omission (including, but not limited to negligence or breach of statutory duty) arising under or in connection with the provision of Services, together, "Claims". Nothing in these Terms and Conditions shall operate to limit or exclude the liability of the parties: for death or personal injury caused by negligence; or for fraud or fraudulent misrepresentation; or for any other matter in respect of which liability cannot be lawfully limited or excluded. Subject to the preceding sub-clause: Neither the Supplier nor the Customer shall be liable for any indirect or special loss or damage, including without limitation loss of profits, loss of business, depletion of goodwill and/or similar losses or pure economic loss, or for any special, indirect or consequential loss costs, damages, charges or expenses however arising; and the Supplier and the Customer's respective total aggregate liability in respect of Claims (inclusive of interest and legal and other costs), restitution or otherwise, arising in connection with the supply of Services shall not in any event exceed Â£2 million in aggregate
16. TERM AND TERMINATION
1. These Terms and Conditions shall apply from the Effective Date.
2. Without prejudice to any other rights, powers or remedies contained herein or otherwise available to the parties, either the Customer or the Supplier may terminate the agreement in relation to the Services at any time by written notice with immediate effect and without liability to them (or where the Supplier has provided Services to Affiliates of the Customer, without liability to any such Affiliate) if:
the other party commits a material breach of any of its obligations under these Terms and Conditions and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; and for the purposes of this clause failure to comply with the Customer obligations in relation to the payment of Fees shall be deemed a material breach of these Terms and Conditions by the Customer; or
an order is made or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order in relation to the other party; or
an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the other party, or notice of intention to appoint an administrator is given by the other party or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986); or
a receiver is appointed of any of the other party's assets or undertaking, or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other party, or if any other person takes possession of or sells the other party's assets; or
the other party makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way, or becomes bankrupt; or
the other party ceases, or threatens to cease, to trade; or
the other party takes or suffers any similar or analogous action in any jurisdiction in consequence of debt, and for the purposes of this clause, where the Services are provided to an Affiliate of the Customer, the "other party" shall be deemed to include any such Affiliate.
3. On termination of the agreement for Services by the Supplier for any reason:
the Supplier shall cease to perform the Services;
all licences granted under these Terms and Conditions shall immediately terminate; and
the Supplier and the Customer shall promptly (and the Customer shall procure that such of its Affiliates that have received the Services shall promptly) return and make no further use of any equipment, property, materials and other items (and all copies of them) belonging to the other.
4. On termination of the agreement for Services by the Supplier for the Customer's failure to comply with its obligations in relation to the payment of Fees, the Supplier shall be granted a lien over any data or information contained in the Fusemetrix system supplied to or used by the Customer; and in such circumstances the Supplier shall be entitled to restrict the Customer's access to such Fusemetrix system until all outstanding Fees are received by the Supplier in full.
5. Any termination of the agreement for Services shall be without prejudice to any other rights or remedies a party may be entitled to hereunder or at law and shall not affect any accrued rights or liabilities of any party nor the coming into or continuance in force or any provision of these Terms and Conditions which is expressly or by implication intended to come into or continue in force on or after such termination and in particular (but without limitation) the following clauses shall continue in full force and effect: Definitions, Confidentiality, Claims, Limitation of Liability, Term and Termination, and Governing Law and Jurisdiction.
A waiver of any right under these Terms and Conditions is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given.
Unless specifically provided otherwise, rights arising under these Terms and Conditions are cumulative and do not exclude rights provided by law.
If any provision (or part of a provision) of these Terms and Conditions is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
The Customer and the Supplier shall not at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations .
20. NO PARTNERSHIP OR AGENCY
Nothing in these Terms and Conditions is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
21. THIRD PARTY RIGHTS
Affiliates of the Customer that receive the Services shall, subject to (i) the fulfilment by them of obligations to be performed as a Customer, and (ii) to the benefit of clause:Limitation of Liability) applying to the Supplier in relation to its dealings with such Affiliate (as a Customer), be entitled to enforce the benefits conferred on the Customer herein.
Except as provided in this clause, no person who is not a party hereto shall have any rights under the Contracts Rights of Third Parties) Act 1999 to enforce any term.
Any notice required to be given hereunder shall be in writing and shall be delivered by hand or sent by pre-paid first-class post, recorded delivery post or air mail to the other party at such address as may have been notified by that party for such purposes, or sent by fax to the other party's fax number as notified.
A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received 48 hours after posting it. A notice sent by air mail shall be deemed to have been received six days after posting it. A notice sent by fax shall be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender).
23. GOVERNING LAW AND JURISDICTION
These Terms and Conditions and any non-contractual obligations arising out of or in connection with themt shall be governed by English law.
The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this agreement (including a dispute relating to any non-contractual obligations arising out of or in connection with these Terms and Conditions).
The parties waive any objection to the English courts on the grounds that they are an inconvenient or inappropriate forum to settle any such dispute.
24. PROCESS AGENT
If within 5 Business Days of the Effective Date, the Customer has not supplied a contact address in England to the Supplier, the Customer shall irrevocably appoint a process agent in England to receive on its behalf service of process of any proceedings in England. Service upon the process agent shall be good service upon the Customer. If the Customer fails to appoint a process agent within such time frame or at any time and/or for whatever reason the appointed process agent ceases to be able to act as process agent in England, the Supplier shall be entitled to appoint a process agent on the Customer's behalf and shall notify the Customer of such appointment. It shall be effective service for the Supplier to serve the process upon such process agent.
The language of these Terms and Conditions and the transactions envisaged by it is English and all notices, demands, requests, statements or other documents or communications shall be in English.
"Additional Services" any additional services the Supplier agrees to perform pursuant to a request from the Customer which are otherwise outside the scope of the obligations hereunder.
"Affiliate" In respect to any person: any person which has a direct or indirect interest in that person; any person in which that person has a direct or indirect interest; any person in which another person (which also has a direct or indirect interest in that person) has a direct or indirect interest; or any person who exercises Control over that person, and for the purposes of this clause, "interest" shall include but not be limited to voting and/or economic interests arising through the ownership of shares or partnership interests by contract or otherwise;
"Business Day" any day which is not a Saturday, Sunday or public holiday in England;
"Confidential Information" any and all information or materials in any form or medium (whether written, oral, visual or electronic) disclosed directly or indirectly by either party or its employees or representatives to the other in connection with the supply of Services which is of a confidential or proprietary nature or is received in circumstances in which the receiving party knows or should know that the information is confidential including without limitation any financial and commercial information relating to the business of either party;
"Control" the ability or right to directly or indirectly, whether through the ownership of voting securities, contract or otherwise (including being the partner of a partnership having the right to manage the affairs of that partnership) of any person: to direct the management of another person; to exercise more than 50% of the votes of another person; to exercise a dominant influence over the other person; or in the case of a partnership, to receive a share of more than one half of the assets of income of that partnership, and "controlled" shall be construed accordingly;
"Customer" The Customer; and/or (as the context requires) such of its Affiliates that the Supplier agrees may receive some or all of the Services;
"Customer Data" the data to be input into the information fields of the Software by the Customer or by the Supplier or any other person on the Customer's behalf;
"Customer's Project Manager" a member of the Customer's staff appointed in accordance with these Terms and Conditions;
"Effective Date" the date of commencement of Services;
"Fees" the fees payable by the Customer to the Supplier for performance of the Services, as described in Schedule 1;
"Hosting Services" the services that the Supplier provides to allow the Customer to access and use the Software, including, but not limited to, hosting set-up and ongoing services, as further described in Schedule 2;
"Intellectual Property Rights" all intellectual property rights, including without limitation, patents, copyrights, design rights, trademarks, service marks, trade secrets, know-how, database rights, inventions and other rights in the nature of intellectual property rights (whether registered or unregistered) and all applications for the same, anywhere in the world;
"Maintenance and Support Services" any error corrections, updates and upgrades that the Supplier may provide or perform with respect to the Software and Hosting Services, as well as any other support or training services provided to the Customer, as further described in Schedule 4; "month" a calendar month;
"Normal Business Hours" 09.00-17.30 on a Business Day;
"Service Level Agreements" the service level arrangements set out in Schedule 5; "Services" the Hosting Services and Maintenance and Support Services, together with any Additional Services; "Software" the Supplier's proprietary software as described in Schedule 3, including any error corrections, updates, upgrades, modifications and enhancements to it provided to the Customer hereunder; "Software Specification" the functionality and performance specifications for the Software, as set out in Schedule 3.
A person includes a corporate or unincorporated body (whether or not having separate legal personality).
A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established. Words in the singular shall include the plural and vice versa.
A reference to one gender shall include a reference to the other genders.
A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
A reference to writing or written includes faxes but not e-mail.
References to clauses and schedules are to the clauses and schedules of these Terms and Conditions; references to paragraphs are to paragraph of the relevant schedule; and each schedule shall have effect as if set out in these Terms and Conditions.
Schedule 1 - Fees
The level of Fees shall be as agreed in writing between the Customer and the Supplier.
2. Fee calculation
Monthly licensing, hosting and support for FuseMetrix system is charged in advance of the month of usage. Charges are calculated per user. Whether a user licence incurs a charge is determined as agreed between the Customer and Supplier.
3. License number calculation
A user license shall incur a charge in any given month if it has been available for use at any point in the prior month, whether or not it has been utilised during the prior month. The charge in respect of a new user added part-way through a month shall only become billable in the following month.
Schedule 2 - Hosting Services
The Supplier shall provide internet connectivity through an internet service provider at the Supplier's data centre. The Customer shall make its own arrangements for internet access in order to access the Software.
CONTINUING HOSTING SERVICES
The continuing Hosting Services provided by the Supplier or its contracted third parties, which allow for availability of the Software, include internet connectivity of the hosted service; and security services, monitoring services, back-up archiving and recovery services and change control, and administration services, each as further detailed in paragraphs 3-7 below). SECURITY SERVICES
The Supplier shall provide security services as follows: access to the facility shall be secured and limited to the Supplier and its contracted third-party personnel; the facility shall be monitored 24 hours a day, seven days a week through closed circuit video surveillance and shall require identification for access; and data access security shall be provided through firewall services with security on the Fusemetrix application, a private network path for administration of certain data services and hardened servers. MONITORING SERVICES The Supplier shall provide, 24 hours a day and seven days a week, monitoring of the computing, operating and networking infrastructure to detect and correct abnormalities. This includes network monitoring, web server and database monitoring, firewall monitoring, and load monitoring.
BACK-UP, ARCHIVING AND RECOVERY SERVICES
The Supplier shall develop the back-up schedule, perform scheduled back-ups, provide routine and emergency data recovery, and manage the archiving process. The back-up schedule shall include weekly full back-ups and daily incremental back-ups. In the event of data loss, the Supplier shall use reasonable endeavours to restore the most recent back-up.
To the extent deemed reasonably necessary by the Supplier to maintain the Hosting Services, the Supplier shall provide change control services in respect of (i) auditing and logging versions of application software, and (ii), implementing new releases, patch releases and other new versions.
These services include the installation and administration of additional hardware, operating system and other software, and other resources as deemed necessary by the Supplier to maintain the Hosting Services.
The Software consists of the following: The FuseMetrix package configured to the requirements of the Customer as notified in writing by the Supplier to the Customer's Project Manager.
Schedule 4 - Maintenance and Support
Maintenance of the hosting equipment, facility, Software or other aspects of the Hosting Services that may require interruption of the Hosting Services ("Maintenance Events") shall not be performed during Normal Business Hours. The Supplier may interrupt the Services to perform emergency maintenance during the daily window of 10.00 pm to 2.00 am UK time. In addition, the Supplier may interrupt the Hosting Services outside Normal Business Hours for unscheduled maintenance, provided that it has given the Customer at least three days' advance notice. Any Maintenance Events which occur during Normal Business Hours, and which were not requested by the Customer, shall be considered downtime for the purpose of service availability measurement. The Supplier shall at all times endeavour to keep any service interruptions to a minimum.
Maintenance includes all regularly scheduled error corrections, software updates and those upgrades limited to improvements to features described in the Software Specification. Support for additional features developed by the Supplier, as requested by the Customer, may be purchased separately at the Supplier's then current rates. The Supplier shall maintain and update the Software as it deems necessary to maintain the Services. Should the Customer determine that the Software includes a defect, the Customer may at any time file error reports. During maintenance periods, the Supplier may, at its discretion, upgrade versions, install error corrections and apply patches to the hosted systems. The Supplier shall use reasonable efforts to avoid unscheduled downtime for Software maintenance. The Supplier shall maintain technical support on the two most current releases of the Software.
TECHNICAL SUPPORT SERVICES
The Supplier shall provide the Customer with technical support services to that specified set of Customer Support Representatives. The Supplier shall provide the Supplier support engineers ("SSEs") who are assigned to the Customer account. The SSEs shall handle support calls from the Customer and shall endeavour to maintain continuity of knowledge of the Customer account history. The Supplier shall use reasonable endeavours to provide continuity of SSEs.
Supplier technical support shall accept voicemail (call 01908 522444), e-mail incident submittal (to email@example.com) from the Customer 24 hours a day, seven days a week. The Supplier technical support shall accept calls for English language telephone support during Normal Business Hours within Business Days. The Supplier shall use reasonable endeavours to process support requests, issue trouble ticket tracking numbers if necessary, determine the source of the problem and respond to the Customer. The Supplier technical support shall respond to all support requests from the Customer within the time periods specified below, according to priority.
The Customer and Supplier Technical Support shall jointly determine the priority of any defect, using one of following priorities:
Priotiry Description Response time Target resolution time
priority 1 (Showstopper) The entire Service is "down" and inaccessible. Priority 1 incidents shall be reported by telephone only. Within half a Normal Business Hour. Four Normal Business Hours. Continuous effort after initial response and with Customer co-operation.
Operation of the Services is severely degraded, or major components of the Service are not operational and work cannot reasonably continue. Priority 2 incidents shall be reported by telephone only. Within four Normal Business Hours. Within two Business Days after initial response.
Certain non-essential features of the Service are impaired while most major components of the Service remain functional. Within 12 Normal Business Hours. Within seven Business Days after initial response.
Errors that are, non disabling or cosmetic and clearly have little or no impact on the normal operation of the Services. Within 24 Normal Business Hours. Next release of Software.
If no progress has been made on a Priority 1 or Priority 2 incident within the Target Resolution Time, the incident shall be escalated to a Supplier support manager. If the incident is not resolved, then after each successive increment of the Target Resolution Time (for example four Business Hours for a Priority 1 incident, two Business Days for a Priority 2 incident), the incident shall be escalated to the supplier technical director, followed by the Managing Director. The Supplier shall provide monitoring of its Hosting Services (as described Schedule 2) 24 hours a day seven days a week. The Supplier shall directly notify the Customer of Maintenance Events that may affect the availability of the Hosting Services.
Schedule 5 - Service Level Arrangements
1. SERVICE AVAILABILITY
The Supplier shall provide at least a 99.9% uptime service availability level (Uptime Service Level). This availability refers to an access point on the Supplier hosting provider's backbone network. It does not apply to the portion of the circuit that does not transit the hosting provider's backbone network, as the Customer is responsible for its own internet access.
2. AVAILABILITY MEASUREMENT
All measurements are performed at five-minute intervals and measure the availability of an availability test page within the Software within 30 seconds. Availability measurement begins on the first day of the first calendar month, beginning not less than 30 days after Customer acceptance of the Software. Availability measurement shall be carried out by the Supplier and is based on the monthly average percentage availability of the Fusemetrix application, calculated at the end of each calendar month as the total actual uptime minutes divided by total possible uptime minutes in the month. The Supplier shall keep and shall send to the Customer, on request, relevant records of its availability measurement activities for the preceding three months.
3. SERVICE CREDITS
If availability falls below the Uptime Service Level (as defined above) in a given calendar month (Service Delivery Failure), the Client may within 3 months of the period to which it relates, request in writing that the Supplier shall credit the Customer's account by an amount calculated as the product of the total cumulative downtime (expressed as a proportion of the total possible uptime minutes in the month concerned) and the total Fee owed for that month (Service Credit).