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STANDARD TERMS FOR THE SUPPLY OF BODYSHOP MANAGEMENT SYSTEM (04/15)

 

This page sets out the legal terms and conditions (“Terms”) on which Digital Software Limited, incorporated and registered in England and Wales with company number 09271119 whose registered office is at 68 Spring Grove Crescent, Hounslow, TW3 4DB, United Kingdom (“Digital Software”) will license use of its bodyshop management system and/or provide services to the Customer.

 

TABLE OF CONTENTS

1. INTERPRETATION

2. SOFTWARE

3. SUBSCRIPTION SERVICES

4. DELIVERY

5. FEES

6. CONFIDENTIALITY AND PERSONAL DATA

7. DIGITAL SOFTWARE'S WARRANTIES

8. LIMITS OF LIABILITY

9. INTELLECTUAL PROPERTY RIGHTS

10. TERM, CONTRACT VARIATION AND TERMINATION

11. GENERAL TERMS

 SCHEDULE 1 – SERVICE LEVEL

 

1. INTERPRETATION

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

Agreement: this agreement consisting of the Order Form inclusive together with these Terms and Conditions as amended and/or updated by Digital Software in accordance with clause 11.2.

Authorised User:  those employees of the Customer who are authorised by the Customer to use the Software and/or Services.

Business Days: Monday to Friday excluding bank holidays in England.

Commencement Date: the date of this Agreement as set out in the Order Form.

Confidential Information: shall have the meaning given to it in clause 6.1.

Customer: the entity detailed in the Order Form.

Customer Data: the data inputted by the Customer or its Authorised Users for the purpose of using the Subscription Services or for facilitating the Customer's use of the Subscription Services.

Customised Software: Software which has been specially adapted by Digital Software for the specific Customer.  Where Software has been customised in such a way, the Customer will be notified in writing by Digital Software.

 

Fault: any failure of the Software or the Subscription Services to operate in all material respects in accordance with its specification and/or documents.

Fee: the fees detailed in the Order Form and payable to Digital Software in accordance with this Agreement

Intellectual Property Rights: patents, utility models, rights to inventions, copyright and related rights, trademarks and service marks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, including all applications for (and rights to apply for and be granted), renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world.

Order Form: the order form emailed by Digital Software to the Customer and accepted by the Customer.

SLA: the service level agreement relating to the Subscription Services and set out in Schedule 1.

Software:  the computer programs listed in the Order Form together with any software provided by Digital Software to the Customer to enable the Customer to use and/or receive the Subscription Services.

Subscription Services: the subscription services provided by Digital Software to the Customer under this Agreement via the website notified to the Customer by Digital Software from time to time.

Support Services: the support services described in clause 3.3

Term:  shall have the meaning given to it in clause 10.1.

Training Services: the training services described in clause 3.4

User Subscriptions: the user subscriptions purchased by the Customer which entitle Authorised Users to access and use the Services and the Documentation in accordance with this Agreement.

 

1.2 Clause, Schedule and paragraph headings shall not affect the interpretation of this Agreement.

1.3 Unless the context otherwise requires:

(a) Words in the singular shall include the plural and in the plural shall include the singular; and

(b) A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.

1.4 In the case of conflict or ambiguity between any provision contained in the Order Form and this Agreement (including any provision contained in the schedules or appendices), the latter shall take precedence.

 

2. SOFTWARE

2.1 Digital Software grants to the Customer a non-exclusive, revocable and limited licence for the duration of this Agreement to use the Software subject to the restrictions set out herein and in the Order Form.

2.2 In relation to scope of use:

(a) For the purposes of clause 2.1, use of the Software shall be restricted to use of the Software in object code form for the normal business purposes of the Customer (which shall not include allowing the use of the Software by, or for the benefit of, any person other than an employee of the Customer).

(b) The Customer may not use the Software other than as specified in clause 2.1 and clause 2.2(a) without the prior written consent of Digital Software, and the Customer acknowledges that additional fees may be payable on any change of use approved by Digital Software.

(c) The Customer may make backup copies of the Software installed on its local machine as may be reasonably necessary for its lawful use. The Customer shall record the number and location of all copies of the Software and take steps to prevent unauthorised copying.

(d) The Software is licensed for use only for the purpose for which it was designed and is for use only in connection with equipment that complies with Digital Software’s minimum equipment and site requirements which are available on request (as updated from time to time) or as may be specified in the Order Form.

(e) Except as expressly stated in this clause 2, the Customer has no right (and shall not permit any third party) to copy, adapt, reverse engineer, decompile, disassemble, modify, adapt or make error corrections to the Software in whole or in part except to the extent that any reduction of the Software to human readable form (whether by reverse engineering, decompilation or disassembly) is necessary for the purposes of integrating the operation of the Software with the operation of other software or systems used by the Customer, unless Digital Software is prepared to carry out such action at a reasonable commercial fee or has provided the information necessary to achieve such integration within a reasonable period, and the Customer shall request Digital Software to carry out such action or to provide such information before undertaking any such reduction.

2.3 The Customer may not use any information provided by Digital Software or obtained by the Customer during any such reduction permitted under clause 2.2(e) to create any software whose expression is substantially similar to that of the Software nor use such information in any manner which would be restricted by any copyright subsisting in it.

2.4 The Customer shall not:

(a) Allow the Software to become the subject of any charge, lien or encumbrance; and

(b) Deal in any other manner with any or all of its rights and obligations under this Agreement,

Without the prior written consent of Digital Software, such consent not to be unreasonably withheld or delayed.

2.5 The Customer shall:

(a) Ensure that the number of persons or devices using the Software does not exceed the number of Authorised Users detailed in the Order Form;

(b) Ensure that the Software is installed on designated equipment only;

(c) Keep a complete and accurate record of the Customer's copying and disclosure of the Software and its users, and produce such record to Digital Software on request from time to time;

(d) Notify Digital Software as soon as it becomes aware of any unauthorised use of the Software by any person;

(e) Pay, for broadening the scope of the licences granted under this Agreement to cover the unauthorised use, an amount equal to the fees which the Digital Software would have levied (in accordance with its normal commercial terms then current) had it licensed any such unauthorised use on the date when such use commenced.

2.6 Where the Software is deployed on the Customer’s own hardware, the Customer is responsible for backing up any data held within and/or utilised by the Services or provided to Digital Software and accordingly, Digital Software shall have no liability for loss of, damage to or corruption of the Customer Data, however it happens.

 

3. SUBSCRIPTION SERVICES

3.1 Terms applying to all Services:

(a) Digital Software shall provide the services identified in the Order Form being either Subscription Services, Support Services, Training Services, and any related services (referred together as “Services”). Notwithstanding any provision of any Order Form to the contrary all dates for the provision of the Services shall be estimates only.

(b) The Customer shall comply with the reasonable instructions of Digital Software as may be relevant to the Services and the Customer shall provide all reasonable co-operations to Digital Software in its provision of the Services.

(c) The Customer shall provide or procure that Digital Software is granted such access to the Customer’s premises, equipment, personnel, data, systems and/or infrastructure as is reasonably required to perform the Services.

(d) Notwithstanding anything to the contrary in this Agreement, the Customer shall be responsible for keeping its own copy of the Customer Data.

3.2 Subscription Services:

(a) Digital Software shall use commercially reasonable endeavours to make the Subscription Services available in accordance with the SLA.

(b) Subject to the Customer purchasing the User Subscriptions in accordance with this Agreement, Digital Software hereby grants to the Customer a non-exclusive, non-transferable right to permit the Authorised Users to use the Services during the Term solely for the Customer's internal business operations.

(c) In relation to the Authorised Users, the Customer undertakes that:

i. the maximum number of Authorised Users or devices that it authorises to access and use the Services shall not exceed the number of User Subscriptions it has purchased from time to time;

ii. it will not allow or suffer any User Subscription to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Services;

iii. Each Authorised User shall keep a secure password for his use of the Services and that each Authorised User shall keep his password confidential;

iv. it shall maintain a written, up to date list of current Authorised Users and provide such list to Digital Software within 5 (five) Business Days of Digital Software's written request at any time or times

v. The Customer shall not access, store, distribute or transmit any viruses, or any material during the course of its use of the Services that is (a) unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; (b) facilitates illegal activity; or (c) in a manner that is otherwise illegal or causes damage or injury to any person or property;

And Digital Software reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer's access to any material that breaches the provisions of this clause.

(d) The Customer shall not:

i. access all or any part of the Services in order to build a product or service which competes with the Services; or

ii. use the Services to provide services to third parties; or

iii. license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services available to any third party except the Authorised Users, or

iv. Attempt to obtain, or assist third parties in obtaining, access to the Services, other than as provided under this clause 3.

(e) The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and, in the event of any such unauthorised access or use, promptly notify Digital Software.

(f) Digital Software shall make periodic back-ups of the data held within or utilised by the Services for Digital Software’s own internal use and the cost of such back-ups shall be included within the Subscription Cost. For the avoidance of doubt, where the Customer requires a backup of its database, it shall submit a request for a back-up and restore (in order for the Customer to test the accuracy of its data). Such requests may be chargeable by Digital Software at its then applicable rate and should be communicated by the Customer via email. The parties shall agree a suitable date and time for the back-up and restore work to be completed.

 

(g) The rights provided under this clause 3 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer.

3.3 Support Services

(a) The Support Services shall consist of:

i. a telephone or email help desk to provide technical support to users of the Software and the Customer shall ensure that only the Customer’s nominated and suitably trained support contacts submit service requests; and

ii. remote diagnosis and, where possible, correction of reproducible faults in the Software use reasonable endeavours to do so within 24 hours except where a fix or new release is needed.

(b) If the Customer terminates or declines to renew the Support Services and subsequently elects to renew the Support Services, the Customer shall pay to Digital Software the applicable fees for the total period of non-maintenance and for the subsequent renewal term.

3.4 Training Services

(a) Digital Software shall provide the training detailed in the Order Form remotely. Where the Customer requires on-site training, the Customer shall reimburse Digital Software for all expenses incurred in attending the Customer’s site.

(b) Digital Software shall notify the Customer reasonably in advance of the delivery dates for such training. Any request from the Customer to change the delivery dates by the Customer may be subject to additional charges.

 

4. DELIVERY

4.1 In the event of any loss or damage to Customer Data during the Services, the Customer's sole and exclusive remedy shall be for Digital Software to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data provided to Digital Software (where the Software is deployed on the Customer’s own hardware) or held by Digital Software as part of the Subscription Services. Digital Software shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by Digital Software to perform services related to Customer Data maintenance and back-up).

4.2 Where the Order Form relates to Software licensing, Digital Software shall deliver and install on the Customer's equipment or the Customer’s virtual environment one copy of the Software.

 

5. FEES

5.1 The Customer shall pay to Digital Software the fees set out in the Order Form. All sums payable under this Agreement are exclusive of VAT or any relevant local sales taxes, for which the Customer shall be responsible.

5.2 If the Customer fails to make any payment due to Digital Software under this Agreement by the due date for payment, then, without limiting Digital Software's remedies under this Agreement, the Customer shall pay interest on the overdue amount at the rate of 4% per annum above Barclays Bank's base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.

5.3 Non-payment by the Customer of Digital Software’s invoices shall entitle Digital Software, without prejudice to any other rights and/or remedies, to suspend the provision of the Services and/or the Customer’s right to use the Software.

5.4 Digital Software reserves the right to increase the price charged for Services by written notice to the Customer and the Customer shall have the right to terminate the relevant Services in accordance with clause 10.4(b) Such termination shall be subject to the notice period outlined in the previous terms of the contract.

 

 

6. CONFIDENTIALITY AND PERSONAL DATA

6.1 Each party shall keep in strict confidence the Software, all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and which have been disclosed by one party (the “Disclosing Party”) to the other (the “Receiving Party”), its employees, agents and/or sub-contractors and any other confidential information concerning the Disclosing Party’s business, the Software, and/or the Services which the Receiving Party may obtain as a result of such disclosure (“Confidential Information”). Each party shall restrict disclosure of such Confidential Information to such of the Receiving Party’s employees, agents and/or sub-contractors as may need to know the same for the purposes of this Agreement, and shall ensure that its employees, agents and/or sub-contractors are subject to obligations of confidentiality corresponding to those which bind the parties to this Agreement. The Receiving Party shall be liable for any breach of the obligations in this Agreement by any of its employees, agents and/or sub-contractors.

6.2 The obligations of confidentiality in clause 6.1 shall not apply to any information which: (a) was lawfully in the possession of the Receiving Party prior to its disclosure by the Disclosing Party; (b) is already public knowledge or becomes so at a future date (other than as a result of a breach by the Receiving Party of this Agreement); (c) comes into the Receiving Party's knowledge from a third party who lawfully possesses such information and such disclosure is not in breach of a duty of confidence; (d) is required to be disclosed pursuant to any statute, regulation, applicable stock exchange rule, ordinance or order of a court of competent jurisdiction (subject to the Receiving Party, where reasonably practicable, giving the Disclosing Party not less than 2 (two) Business Days written notice thereof); or, (e) independently developed by the Receiving Party without access to or knowledge or use of the Confidential Information.

6.3 No party shall make, or permit any person to make, any public announcement concerning this Agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.

6.4 If Digital Software processes any personal data on the Customer's behalf when performing its obligations under this Agreement, the parties record their intention that the Customer shall be the data controller and Digital Software shall be a data processor and in any such case:

(a) The Customer acknowledges and agrees that the personal data may be transferred or stored outside the EEA or the country where the Customer and the Authorised Users are located in order to carry out the Services and Digital Software's other obligations under this Agreement;

(b) The Customer shall ensure that the Customer is entitled to transfer the relevant personal data to Digital Software so that Digital Software may lawfully use, process and transfer the personal data in accordance with this Agreement on the Customer's behalf;

(c) The Customer shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation;

(d) Digital Software shall process the personal data only in accordance with the terms of this Agreement and any lawful instructions reasonably given by the Customer from time to time; and

(e) Each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.

 

 

7. DIGITAL SOFTWARE'S WARRANTIES

7.1 Digital Software warrants that the Software will during normal use provide in all material respects the facilities and functions described in Digital Software’s standard documentation for such Software for a period of 60 (sixty) days from the date of this Agreement (Warranty Period). The Customer hereby agrees that its sole remedy in respect of any breach of the said warranty is that Digital Software will remedy such breach without charge to the Customer and if in Digital Software’s reasonable opinion, Digital Software is unable to remedy any such breach then its liability for that failure is limited to refunding a reasonable portion of the fees paid for that Software (where such portion shall be calculated by Digital Software acting reasonably and having regard to the circumstances of the breach in question).

7.2 The warranty set out in clause 7.1 shall not apply: (a) if the Software is not running on the minimum equipment requirements identified in the relevant Software documentation and/or Order Form; (b) to Software modified by the Customer and/or any third party other than in accordance with Digital Software’s written instructions; (c) where any environmental specification for the operation of the Software is not maintained; (d) to any loss, damage or destruction of or to the Software, save where the loss, damage or destruction is caused by Digital Software; or (e) to any defect or malfunction caused by negligence, neglect or misuse (other than by Digital Software’s negligence, neglect or misuse).

7.3 Digital Software does not warrant that the use of the Software or Subscription Services will be uninterrupted or error-free.

7.4 The Customer accepts responsibility for the selection of the Software and/or Subscription Services to achieve its intended results and acknowledges that the Software and/or Subscription Services have not been developed to meet the individual requirements of the Customer.

7.5 Digital Software warrants that all Services will be carried out with reasonable care and skill by personnel whose qualifications and experience will be appropriate for the tasks to which they are allocated. Digital Software warrants that it will use reasonable endeavours to provide the Subscription Services in substantial conformance with Digital Software’s standard documentation for the Subscription Services as applicable. Digital Software shall have no liability or obligations under the aforesaid warranties unless it has received written notice of the breach of warranty in question no later than 60 (sixty) days after the date on which Digital Software performed the act or omission which caused the breach of warranty. The Customer hereby agrees that its sole remedy in respect of any breach of the said warranties is that Digital Software will remedy such breach without charge to the Customer and if in Digital Software’s reasonable opinion, Digital Software is unable to remedy any such breach then its liability for that failure is limited to refunding a reasonable portion of the fees paid for the relevant Services for 1 (one) months prior to the date of the breach (where such portion shall be calculated by Digital Software acting reasonably and having regard to the circumstances of the breach in question).

7.6 All other conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into this Agreement or any collateral contract, whether by statute, common law or otherwise, are hereby excluded, including the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose or the use of reasonable skill and care.

 

8. LIMITS OF LIABILITY

8.1 This clause 8 sets out the entire financial liability of the parties (including any liability for the acts or omissions of their employees, agents and sub-contractors) in respect of all matters arising out of this Agreement.

8.2 Nothing in this Agreement shall be construed as limiting or excluding the liability of Digital Software for:

(a) Death or personal injury caused by the negligence of Digital Software, its officers, employees, contractors or agents;

(b) Fraud or fraudulent misrepresentation; or

(c) Any other liability which may not be excluded by law.

8.3 Subject to clause 8.2, Digital Software shall not be liable to the Customer for any of the following (where in each of clauses 8.3(a) to 8.3(f) inclusive whether of a direct or indirect nature):

(a) Loss of profits;

(b) Loss of anticipated savings;

(c) Loss of business opportunity;

(d) Loss of goodwill;

(e) Loss or corruption of data,

(f) Loss of use; and/or

(g) Special, indirect or consequential loss.

8.4 Subject to clause 8.2 Digital Software's total liability in contract, tort (including negligence or breach of statutory duty), or under any indemnity, misrepresentation, restitution or otherwise arising in connection with the performance or contemplated performance of this Agreement (or any collateral contract) shall be limited to:

(a) In the case of claims relating to the Software, 100% of the fee paid and payable in relation thereto by the Customer for the 1 (one) months preceding the date on which the cause of action giving rise to the claim arose;

(b) In the case of claims relating to the Services, 100% of the fee paid and payable in relation thereto by the Customer for the 1 (one) months preceding the date on which the cause of action giving rise to the claim arose;

(c) In the case of all other matters, £370.

8.5 Digital Software shall not be liable for any loss or damage suffered by the Customer where such loss or damage is suffered in consequence of any unavailability or failure or interruption of the Software and/or Services arising from any of the Customer’s systems, equipment or any third party equipment or where caused by Customer’s acts or omissions.

8.6 If Digital Software's performance of its obligations under this Agreement is prevented or delayed by any act or omission of the Customer, its agents, sub-contractors and/or employees, Digital Software shall not be liable for any costs, charges and/or loss sustained or incurred by the Customer arising directly or indirectly from such prevention or delay.

8.7 All dates supplied by Digital Software for the delivery of the Software or the provision of Services shall be treated as approximate only. Digital Software shall not in any circumstances be liable for any loss or damage arising from any delay in delivery beyond such approximate dates.

8.8 The Customer shall indemnify and hold harmless Digital Software against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with a breach by the Customer of this Agreement or in connection with the preservation, exercise or enforcement of any of Digital Software’s rights under this Agreement.

 

9. INTELLECTUAL PROPERTY RIGHTS

9.1 The Customer acknowledges that all Intellectual Property Rights in the Software, any new releases of such Software and the Services belong and shall belong to Digital Software (or the relevant third-party owners (as the case may be)), and the Customer shall have no rights in or to the Software and/or Services other than the right to use it in accordance with the terms of this Agreement.

 

10. TERM AND TERMINATION

 10.1 This Agreement shall commence on the Commencement Date.

 

(a) Where Customised Software has been provided by Digital Software and the Customer has been notified of this, the Customer irrevocably enters into a 5 (five) year contract which will expire after 5 years of the Commencement Date. After this 5-year period, the Agreement shall continue in full force for successive periods of 12 (twelve) months unless terminated in accordance with this Agreement

 

(b) Where standard Software is provided and it is not Customised Software, the Agreement shall continue in full force for successive periods of 12 (twelve) months unless terminated in accordance with this Agreement. (“Term”).

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

(a) The other party fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 14 (fourteen) days after being notified in writing to make such payment;

(b) The other party commits a material breach of any of the terms of this Agreement and (if such a breach is remediable) fails to remedy that breach within 30 (thirty) days of that party being notified in writing of the breach; or

(c) The other party becomes insolvent or is otherwise unable to pay its debts as they fall due.

10.3 Subject to 10.1, either party may terminate this Agreement at any time by giving 12 (twelve) months’ advance written notice to the other party. The Customer acknowledges that no refund shall be issued where the Customer terminates this Agreement pursuant to this clause 10.3. In the event that the Customer has been provided with Customised Software by Digital Software, the minimum Term of the Agreement is 5 (five) years and the Customer will be required to continue making payment of the Fees for the Term unless otherwise agreed in writing with Digital Software.

10.4 The Customer may terminate this Agreement:

(a) Notwithstanding any subsequent modification to the terms of this contract, any notification of said modifications shall be provided to the customer via email. In the event that the customer chooses to terminate the contract, such termination shall be subject to the notice period outlined in the previous terms of the contract. In the event that notice of termination is provided in accordance with the previous terms, such previous terms shall continue to govern the rights and obligations of the parties with respect to that particular customer.

10.5 Any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Agreement shall remain in full force and effect.

10.6 Termination or expiry of this Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination or expiry.

10.7 On termination for any reason:

(a) All rights granted to the Customer under this Agreement shall cease;

(b) The Customer shall cease all activities authorised by this Agreement;

(c) The Customer shall immediately pay to Digital Software any sums due to Digital Software under this Agreement; and

(d) The Customer shall immediately destroy or return to Digital Software (at Digital Software's option) all copies of the Software and Confidential Information then in its possession, custody or control and, in the case of destruction, certify to Digital Software that it has done so.

10.8 Where Digital Software has been providing the Customer with the Subscription Services, the Customer may request the most recent backup file archived by Digital Software provided that such request is received by Digital Software within 7 (seven) days from the date of termination of this Agreement. The backup file will be in a form of a SQL database file and the Customer shall be responsible for procuring licences to the appropriate software to be able to restore such SQL file. The data within the backup file will be in a raw format. Digital Software may provide the Customer access to its user interface where so requested by the Customer prior to termination which will be charged at Digital Software’s then applicable rate.

 

11. GENERAL TERMS

11.1 This Agreement contains the entire understanding of the parties with respect to the subject matter hereof and supersedes and extinguishes any prior drafts, agreements, undertakings, understandings, promises or conditions, whether oral or written, express or implied between the parties. Each party acknowledges to the other that it has not been induced to enter into this Agreement by, nor has it relied upon, any representations, promises, covenants or undertakings of the parties with respect to such subject matter other than those expressly set out in this Agreement.

11.2 Digital Software may vary this Agreement at any time by publishing the amended terms via a link on the customer login page of Digital Software’s website and the Customer may terminate this Agreement in accordance with clause 10.4. Where the Customer does not so terminate and elects instead to log on, the Customer shall be deemed to have accepted the variation.

11.3 Any notice under this Agreement must be in writing and must be addressed to a director of the other party (or equivalent position) and be personally delivered or sent by expedited delivery service or certified or registered mail, return receipt requested, first-class postage prepaid, or sent by email to the recipient party at its registered office or such changed address (including email address) as shall be notified by one party to the other for the purposes of this clause. Any notice shall be deemed to have been given at the time of personal delivery, or in the case of email upon transmission provided confirmation is sent as described above, or in the case of expedited delivery service or registered or certified mail 3 (three) Business Days after the date and time of mailing.

11.4 Digital Software may assign the benefit of this Agreement to any person, firm or company. The Customer shall not be entitled to assign this Agreement without the prior written consent of Digital Software. Neither party is responsible for failure to fulfil its obligations in this Agreement due to causes beyond its reasonable control that directly or indirectly delay or prevent its timely performance hereunder and if a party shall become aware of any such causes it shall promptly inform the other party thereof.

11.5 The parties shall comply with their respective obligations under applicable law regarding anti-bribery and anti-corruption.

11.6 No employment, partnership or agency relationship will be deemed to exist between the Customer and any personnel of Digital Software.

11.7 Each right or remedy of a party under this Agreement is without prejudice to any other right or remedy of that party whether under this Agreement or not.

11.8 The Customer shall permit reasonable access by Digital Software to its premises during Business Days to audit compliance with the terms of this Agreement and to remove items of software that are not licensed and/or being used in accordance with the terms of this Agreement.

11.9 If any provision of this Agreement is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Agreement and the remainder of such provision shall continue in full force and effect.

11.10 Failure or delay by a party in enforcing or partially enforcing any provision of this Agreement shall not be construed as a waiver of any of its rights under this Agreement.

11.11 Except as expressly stated therein, the parties to this Agreement do not intend that any term of this Agreement shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.

11.12 The invalidity, illegality or unenforceability of any provision of this Agreement, or a provision in any other agreement which is identical to one in this Agreement shall not affect the other provisions and this Agreement shall be given effect as if the invalid, illegal or unenforceable provision has been deleted.

11.13 This Agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by and construed in accordance with the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).

 

 

 

 

Schedule 1 – Service Level

 

This Schedule 1 shall apply to the Subscription Services detailed in the Order Form.

 

1. DEFINITIONS

The following terms shall have the following meaning in this service level agreement. Any terms not defined in this Schedule 1 shall have the meaning given to them in the Standard Terms For The Supply of Bodyshop Management System (03/15)

 

“Available Hours” shall mean the hours during which Digital Software’s support team are available and therefore mean 09:00 to 17:00 hours, Monday to Friday, excluding U.K. Public and Bank holidays.

 

“Service Unavailability” shall mean the hours during the Available Hours during which the Customer is unable to connect to the access point on Digital Software hosting provider's backbone network unless any of the factors or events detailed in paragraph 2.2 applies.

 

“Uptime Service Level” shall be calculated as per paragraph 3.

 

“Uptime Service Level Target” shall have the meaning given to it in paragraph 2.1.

 

2. SERVICE AVAILABILITY

2.1 Digital Software shall provide at least a [95%] uptime service availability level (Uptime Service Level Target).

 

2.2 The parties agree that the following shall be disregarded when calculating the hours of Service Unavailability:

• Any unavailability resulting from the Customer’s own internet access issues.

• Any planned maintenance events notified to the Customer in advance, Customer-caused or third party-caused outages or disruptions; and/or

• Any outages or disruptions attributable in whole or in part to force majeure events.

• Third party outages shall include any outage caused by unauthorised users accessing the Subscription Services (whether such outage is due to viruses, malicious software or any damage caused to Digital Software’s system).

 

3. AVAILABILITY MEASUREMENT

The Uptime Service Level is calculated on a monthly basis using the following formula expressed as a percentage:

 

(Available Hours during the period minus Service Unavailability during the period) x 100

                                                            (Available Hours)

 

4. [SERVICE CREDITS

4.1 If the Uptime Service Level falls below the Uptime Service Level Target in a given calendar month, Digital Software shall credit the Customer's account by an amount calculated as follows:

 

(Uptime Service Level Target - Uptime Service Level) x the monthly Subscription Fees (pro-rated where applicable)

 

4.2 A Service Credit shall not be payable unless the Customer requests it within 10 (ten) Business Days of the end of the calendar month to which the Service Credit relates. The maximum Service Credit allowable in a given month is limited to an amount equal to 20% of the total Subscription Fee owed by the Customer for that month.

 

4.3 The Customer acknowledges and agrees that the terms of this Schedule 1 relating to Service Credits constitute a genuine pre-estimate of the loss or damage that the Customer would suffer as a result of Digital Software’s failure to achieve the Uptime Service Level Target and are not intended to operate as a penalty for Digital Software’s non-performance.

 

 4.4 The payment of service credits represents the Customer’s sole remedy in relation to a failure to achieve the Uptime Service Level Target.]