Integrity Hosting Agreement
1. THE CONTRACT
INTEGRITY is the author and owner of the Evolution M product. INTEGRITY can supply this service via a hosted solution whereby INTEGRITY undertakes to hold the Customers data in a preconfigured server, held at a site nominated by INTEGRITY which operates the Evolution M Product. INTEGRITY will provide secure storage of the server, conduct administration upgrades, periodic backups. Access to the server is remote and is undertaken by the Customer for the purposes of processing data to produce finance and administration information.
In this Contract the following terms have the definitions shown next to them:
“Authorised User” anyone who has been trained by INTEGRITY and has been set up as a user of the Evolution M product.
“Billing Period” means the consecutive periods of three months beginning on the date that the INTEGRITY Hosting service is activated and available for the Customer to use.
“INTEGRITY” means Integrity Software Systems Limited registered in England No. 3410598 including its authorised sub-contractors and agents.
“Sales Agreement” means the Schedule containing details of charges attached to this Contract.
“Conditions” means these terms and conditions for Hosting Services from INTEGRITY.
“Contract” means these Conditions, the Service Schedule, the Sales Agreement, the Software Licence Agreements and the Order Form. This Contract begins on the date that the Order Form is accepted by INTEGRITY.
“Customer” means the person named on the Order Form. INTEGRITY may take instructions from a person who the customer advises in writing, in advance, is acting with the Customer's permission.
“Customer Equipment” means equipment that is not part of the Service and which the Customer uses or plans to use with the Service.
“Customer Information” means data, information, and any other materials (in whatever form) published or otherwise made available (directly or indirectly) by or on behalf of the Customer by using the Service. Customer Information may include information about the Customer (including individual employees or its representatives) or the Customer's Authorised User, which may include personal data subject to laws or regulations.
“Helpdesk” means the helpdesk facility provided by INTEGRITY to handle enquiries and administration for the Service.
“Initial Period” means the period commencing on the Operational Service Date and ending [number of] months thereafter.
“Internet” means the global data network comprising interconnected networks using the TCP/IP protocol suite.
“Operational Service Date” means the date when the Service is installed and available for use or the date when the Customer first starts to use the Service, whichever is the earlier.
“Service” means the service or, where appropriate the services or part of the service described in the Service Schedule and provided to the Customer under this Contract. The Service includes the provision of access to various accounting components of the Evolution M product which together allow the Customer Information to be processed.
Software Licence Agreement” means the agreement provided by any third party software supplier which the Customer must accept prior to use of the third party software with the Service, the current versions of which are provided as the Software Licence Agreements attached to this Contract.
2. PROVIDING THE SERVICE
2.1 INTEGRITY will provide the Service by the date agreed with the Customer. All dates are estimates and INTEGRITY will apply reasonable endeavours to achieve said dates.
2.2 For operational reasons, the system will not be available from 10pm to 4 am each day. INTEGRITY with no less than 48 hours notice may shut the system down from 8pm on Friday to 4am on Monday to facilitate amendments or management of the System
2.3 The Customer accepts that occasionally INTEGRITY will provide training regarding the Service. The Customer must follow these instructions.
2.4 With the exception of the hardware, Software and services described as being provided by INTEGRITY in the Service Schedule, the Customer is responsible for providing suitable computer hardware, third party licences, and telecommunications equipment and services necessary to access and use the Service.
2.5 As far as possible the service will be uninterrupted, however the Customer and INTEGRITY recognises that circumstances outside of the direct control of INTEGRITY may arise, including but not limited to loss of services from the Server Site, failure of all or a part of the Telecommunications network, or supply of electricity supplies powering the service. INTEGRITY undertakes to apply reasonable endeavours to ensure that any such event has limited impact upon the Service. Such undertakings will include offering resilience into the network through the use of mirrored sites, contracting for server maintenance, the provision of uninterrupted power supplies and other arrangements which INTEGRITY defines as arise from time to time.
2.6 In the event of a system failure, notice of such failure will be applied to the Website as soon as INTEGRITY is notified of the matter.
3. CUSTOMER EQUIPMENT
Any Customer Equipment must be:
(a) technically compatible with the Service and not harm the Service; and
(b) connected and used in line with any relevant instructions, standards or laws.
4. ACCESSING THE CUSTOMER'S PREMISES
INTEGRITY may need access to the Customer's systems from time to time (for example, for installation, repairs, maintenance or upgrades). In this event INTEGRITY will give the Customer advance notice, the Customer agrees to allow INTEGRITY, or INTEGRITY's appointed IT subcontractor, access. INTEGRITY, or INTEGRITY's appointed IT subcontractor, will meet the Customer's reasonable requirements and the Customer must meet INTEGRITY's, concerning the safety of people on the Customer's premises.
5. MAKING SURE THE SERVICE IS SECURE
5.1 The Customer is responsible for the security and proper use of all user identities ("Usernames") and passwords used in connection with the Service (including changing passwords on a regular basis) and must take all necessary steps to ensure that they are kept confidential, secure, used properly and not disclosed to unauthorised people.
5.2 The Customer must immediately inform INTEGRITY if there is any reason to believe that a Usernames or password has or is likely to become known to someone not authorised to use it or is being or is likely to be used in an unauthorised way.
5.5 INTEGRITY reserves the right at its sole discretion to require the Customer to change any or all of the passwords used by the Customer in connection with the Service.
6. USE OF THE SERVICE
6.1 The Customer shall only access the Service as permitted by INTEGRITY and shall not attempt at any time to circumvent system security or access the source software or compiled code.
6.2 The Service is provided solely for the Customer's own use (including use by Authorised Users) and is limited to a fixed number of users. The Customer will not resell or attempt to resell the Service (or any part or facility of it) to any third party, for the avoidance of doubt this includes the exclusion of any right to act as data bureau.
6.3 The Service is protected by copyright, trademark and other intellectual property rights, as applicable. The Customer must not and must not permit anyone else to copy, store, adapt, modify, transmit or distribute the Service except to Authorised Users.
6.4 The Customer must not use a Trademark, which infringes the rights of any person in a corresponding trademark or name.
6.5 The Customer shall be responsible for the creation, maintenance and administration of all Customer Information.
6.6 The Customer is solely responsible for the preparation, administration, control and reporting of information into and out of the system. It is the customer’s role to ensure that it complies with all legislation, instructions or guidelines issued by regulatory authorities, and which relate to the provision of Customer Information.
6.7 The Service must not be used in a way that:
(a) does not comply with the terms of any legislation or any licence applicable to the Customer or that is in any way unlawful;
(b) does not comply with any instructions given by INTEGRITY under paragraph 2.3; or
(c) would put INTEGRITY in breach of the terms INTEGRITY has with any third party supplier, including but not limited to database suppliers, notified in writing by INTEGRITY to the Customer.
6.8 If the Customer or anyone else, with or without the Customer's knowledge or approval, uses the server capacity or the Software made available to it in any way which, in INTEGRITY's opinion is, or is likely to be, detrimental to the provision of the Service to the Customer or any other customer and fails to take corrective action within a reasonable period of receiving notice from INTEGRITY.
INTEGRITY may treat the contravention as a material breach of this Contract, which cannot be remedied for the purposes of paragraph 14.
6.10 The Customer must indemnify INTEGRITY against any claims or legal proceedings, which are brought or threatened against INTEGRITY by a third party because:
(a) the Service is not used in accordance with this Contract due to acts or omissions of the Customer; or
(b) the Service is faulty or cannot be used by that third party due to acts or omissions of the Customer.
This indemnity will not apply to the extent that INTEGRITY has caused Service affecting faults. INTEGRITY will notify the Customer of any such claims or proceedings and keep the Customer informed as to the progress of such claims or proceedings.
6.11 The Customer is responsible for the acts and omissions of all Authorised Users in connection with the Service and is liable for any failure by any Authorised User to perform or observe the terms and conditions of this Contract, including any instructions issued under paragraph 2.3. The Customer must advise any change in the Admin User by email to the Helpdesk as described in the Service Schedule.
6.12 INTEGRITY may take action to manage network performance to avoid disruption of the service,
7.1 INTEGRITY grants the Customer an annual, non-exclusive, non-transferable licence to use the Software for that purpose.
7.2 The Customer will not, without INTEGRITY's prior written consent, copy, decompile or modify the Software, nor copy the manuals or documentation (except as permitted by law).
7.3 The Customer will sign the Current Copy of the Software Licence, or if they have previously agreed to the current terms they accept that a copy of said agreement will be attached to this Contract. The customer will abide by said agreement.
7.4 INTEGRITY may offer updates or modifications to the Software or documentation. Any applicable charges for such updates or modifications will be notified to the Customer at the time INTEGRITY offers such updates or modifications.
8. INTELLECTUAL PROPERTY RIGHT INDEMNITIES
8.1 INTEGRITY will indemnify the Customer against any claims and proceedings arising from infringement of any intellectual property rights through INTEGRITY's provision of the Service to the Customer. As a condition of this indemnity the Customer must:
(a) notify INTEGRITY promptly in writing of any allegation of infringement;
(b) make no admission relating to the infringement;
(c) allow INTEGRITY to conduct all negotiations and proceedings and give INTEGRITY all reasonable assistance in doing so (INTEGRITY will pay the Customer's reasonable expenses for such assistance); and
(d) allow INTEGRITY to modify the Service, or any item provided as part of the Service, so as to avoid the infringement, provided that the modification does not materially affect the performance of the Service.
8.2 The indemnity in paragraph 8.1 does not apply to infringements caused by the use of the Service in conjunction with other equipment, software or services not supplied by INTEGRITY or to infringements caused by designs or specifications made by, or on behalf of, the Customer. The Customer will indemnify INTEGRITY against all claims, proceedings and expenses arising from such infringements.
8.3 The limitations and exclusions of liability contained in paragraph 10 do not apply to this paragraph 8.
9. CHARGES AND DEPOSITS
9.1 The Customer agrees to pay all charges for the Service as shown in the Sales Agreement calculated using the details recorded by INTEGRITY. Charging will begin on the Operational Service Date.
9.2 INTEGRITY will invoice the Customer in accordance with the Sales Agreement.
9.3 Billing will be made 45 days in advance, and is billable quarterly.
9.4 The Customer will arrange for a standing order to be set up to the benefit of INTEGRITY, payable on a quarterly basis in advance for the service.
Any other charges will be payable within 28 days of the date of INTEGRITY's invoice. INTEGRITY may charge daily interest on late payments at a rate equal to 4 % per annum above the base lending rate of HSBC Bank plc.
9.5 Fees may be increased on the Anniversary, of the operational service date, by no more than RPI plus 10% per annum. Price increases will be advised with notice appearing on the quarterly invoice, billed in advance.
10. LIMITS OF LIABILITY
10.1 INTEGRITY accepts unlimited liability for death or personal injury resulting from its negligence.
10.2 INTEGRITY is not liable to the Customer for any loss of business, revenue, profit or expected savings, wasted expense, financial loss or data being lost or corrupted or for any loss that could not have been reasonably foreseen.
10.3 Subject to paragraph 10.1, INTEGRITY's liability to the Customer in contract, tort (including negligence) or otherwise in relation to this Contract is limited to £125,000 for any one incident or series of related incidents and to £250,000 for all incidents in any 12 month period.
10.5 INTEGRITY excludes all liability of any kind in respect of Customer Information or any other material which can be accessed or acquired using the Service.
10.6 INTEGRITY is not liable to the Customer either in contract, tort (including negligence) or otherwise for the acts or omissions of other providers of telecommunications or Internet services (including domain name registration authorities) or for faults in or failures of their equipment.
10.7 Each provision of this Contract that excludes or limits INTEGRITY's liability operates separately. If any part is disallowed or is not effective, the other parts will still apply.
INTEGRITY has arranged that each evening a back up of the client’s data is made. Backups are kept for a rolling 7 days.
It is the client’s responsibility for any backups which are required by the client for longer than 7 days to be downloaded and stored by the client. INTEGRITY has provided a routine to perform remote backups but it is the customers responsibility to ensure that such backups are complete and thoroughly tested through to full restore. INTEGRITY will not be liable for losses of data or for the absences of key backups such as year-end copies. This is the customer’s sole responsibility.
12. MATTERS BEYOND INTEGRITY'S REASONABLE CONTROL
Sometimes INTEGRITY may be unable to do what it has agreed because of something beyond its reasonable control and INTEGRITY shall not be liable for this.
13. ENDING THIS CONTRACT
13.1 This Contract can be ended at any time, by either party on 90 days notice before the anniversary of the Operational Service Date to the other subject to the Initial period allowed under this contract
13.2 If this Contract ends during the Initial Period the Customer must pay INTEGRITY the early termination charge shown in the Sales Agreement. This is not the case if the Customer does so because INTEGRITY increases its charges, or changes the Conditions in either case to the Customer's significant disadvantage,
13.3 If this Contract ends the Customer will receive no further access to the licence or Data held thereon. It is the Customer’s responsibility to arrange for any required data to be transferred before this service ceases. INTEGRITY can facilitate this for you but additional charges will apply.
14. IF THE CUSTOMER BREAKS THIS CONTRACT
14.1 INTEGRITY can suspend the Service or end this Contract (or both) at any time without notice if one of the following applies:
(a) the Customer breaches this Contract and fails to put right the breach within a reasonable time of being asked to do so; or
(b) INTEGRITY reasonably believes that the Service is being used in a way forbidden by paragraph 6. This applies even if the Customer does not know that the Service is being used in such a way; or
(c) bankruptcy or insolvency proceedings are brought against the Customer; or if the Customer does not make any payment under a judgment of a court on time, or makes an arrangement with its creditors; or a receiver, an administrative receiver or an administrator is appointed over any of its assets; or the Customer goes into liquidation.
(d) the customer fails to pay an invoice as, agreed in the contract, and then fails to rectify the payment within 7 days of notification
14.2 If the Service is suspended, INTEGRITY will tell the Customer what needs to be done before it can be re-instated. However the Customer will be due for the payment of charges whilst the Contract continues, irrespective of whether they are using the system.
14.3 If either party delays in acting upon a breach of this Contract that delay will not be regarded as a waiver of that breach. If either party waives a breach of this Contract that waiver is limited to that particular breach.
15. CHANGES TO THIS CONTRACT
INTEGRITY can change the Conditions (including the charges) at anytime on 90 days notice to the Customer.
16.1 The Customer warrants that it is the owner of, any trademarks that it intends to incorporate into the body of reports or output produced from the system or that it is duly authorised by the owner of, any trademark or name that it wishes to use...
16.2 INTEGRITY reserves the right to require the Customer to exclude a trademark or offer a replacement trademark and may either refuse to provide or may suspend Service if, in INTEGRITY’s opinion, there are reasonable grounds for INTEGRITY to believe that the trademark is, or is likely to be, offensive, abusive, defamatory or obscene or in breach of the provisions of paragraph 6.4.
17. TRANSFERRING THIS CONTRACT
The Customer cannot transfer or try to transfer this Contract, or any part of it, to anyone else.
18. THIRD PARTY RIGHTS
The parties agree that the terms of this Contract are not enforceable by a third party under the Contracts (Rights of Third Parties) Act 1999.
All notices given under this Contract must be in writing and may be delivered by hand or by courier, or sent by first class post, facsimile or electronic mail to the following addresses:
(a) to INTEGRITY at the address shown on the bill or any address which INTEGRITY provides to the Customer;
(b) to the Customer at the address to which the Customer asks INTEGRITY to send invoices the address of the Customer's premises or, if the Customer is a limited company, its registered office, or to the Customer's primary email address.
20. DATA PROTECTION ACT
The Customer warrants that they will duly observe all their obligations under the Data Protection Act 1998 and any other relevant data privacy legislation, regarding the processing of any personal data collected and used in connection with the Service.
This Contract is governed by the law of England and Wales and both parties submit to the exclusive jurisdiction of the English Courts.