FRAMEWORK SERVICES AGREEMENT
TERMS AND CONDITIONS
Last Updated June 24, 2020
1.1 The following definitions and rules of interpretation apply to the Framework Services Agreement.
1.2 Unless the context otherwise requires, words and expressions defined in the Service Order Form shall have the same meanings and:
Available Services: Implementation Services, Hosting Services and/or Maintenance and Support Services.
Business Day: any day which is not a Saturday, Sunday or public holiday in the United States.
Confidential Information: information, whether in oral, visual, written, electronic or in other tangible or intangible form, that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information at the time of disclosure. Customer Data, Software, the results of any performance tests of Software and Services also constitute Confidential Information.
Configuration: The configuration of Software as specified in a Service Order Form or in a SHE Software Statement of Work (as applicable).
Contract Start Date: the date Customer signs the Service Order Form.
Customer Account Team: the individuals appointed by Customer from time to time who shall serve as Supplier's primary contacts for Supplier's activities. The initial members of the Customer Account Team are listed in the original Service Order Form.
Customer Data: the data inputted into the information fields of the Software by Customer, by Users, or by Supplier on Customer's behalf.
Customer's Project Manager: the member of Customer Account Team appointed in accordance with clause 6.2. Customer's Project Manager at the Contract Start Date is named in the Service Order Form.
Fees: the fees payable to Supplier, as described in a Service Order Form.
Hosting Services: the services as described in clause 4.1 that Supplier provides to allow Customer to access and use the Software.
Implementation Services: the work Supplier will perform to configure the Software and provide training, as set out in the Statement of Work.
Initial Term: the initial term specified in the applicable Service Order Form.
Maintenance and Support: any error corrections, updates and upgrades that Supplier may provide or perform with respect to the Software and Hosting Services, all as described in clause 4.8.
Renewal Period: the renewal period set out in the applicable Service Order Form.
Service Order Form: the service order form, agreed in accordance with clause 3.1, describing the Services to be provided by Supplier, applicable Fees, and related matters.
Services: the Available Services which are provided by Supplier under a Service Order Form.
Signature Page: the first page of the Service Order Form containing the preamble, recitals and signatures of the Parties.
Software: Supplier's proprietary software in machine-readable object code form, including any error corrections, updates, upgrades, modifications and enhancements to it provided to Customer under the Framework Services Agreement.
Statement of Work (SOW): a schedule accepted by both parties and appended to a Service Order Form, governed by these Terms and Conditions, that provides a detailed description of all Services to be provided under the applicable Service Order Form.
Supplier Account Team: the individuals appointed by Supplier from time to time who shall serve as Customer's primary contacts for Customer's activities. The initial members of Supplier Account Team are listed in the original Service Order Form.
Supplier's Project Manager: the member of Supplier's Account Team appointed in accordance with clause 6.1(b). Supplier’s Project Manager at the Contract Start Date is named in the original Service Order Form.
Users: those specific employees and independent contractors or other authorized third parties (up to the total number of User licenses specified in the Service Order Form) who are authorized to use the Software hereunder.
Virus: any thing or device (including any software, code, file or program) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data (whether by re-arranging, altering or erasing the program or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
References to clauses: are to the clauses of these Terms and Conditions. Clause and paragraph headings shall not affect the interpretation hereof. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality), and a company includes any company, corporation or other body corporate, wherever and however incorporated or established. Unless the context otherwise requires, words in the singular shall include the plural, words in the plural include the singular, and a reference to one gender shall include a reference to the other genders.
1.3 A reference to writing or written includes faxes and email.
1.4 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
1.5 A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.
1.6 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.7 In the event of an inconsistency between the various documents comprising the Framework Services Agreement, the following order of priority shall apply: (i) the applicable Service Order Form(s); (ii) the Statement of Work (if any); and (iii) these Terms and Conditions.
1.8 These Terms and Conditions shall apply to the supply of all Services except where application to one or the other is specified.
1.9 The Statement of Work shall apply to the Services to be carried out under the original Service Order Form to which it was appended only, unless expressly stated otherwise in the applicable Service Order Form.
2. Commencement and Duration
2.1 These Terms and Conditions shall commence on the initial Contract Start Date and shall continue, unless and until either Party gives to the other Party written notice to terminate.
2.2 Notwithstanding termination in accordance with clause 2.1, these Terms and Conditions will continue to apply to all active Service Order Forms until their expiration.
2.3 The Parties shall not enter into any further Service Order Forms after the date on which notice to terminate is served.
2.4 Customer may procure any of the Available Services by entering into a Service Order Form with Supplier.
2.5 Supplier shall provide the Services from the date specified in the relevant Service Order Form (“Order Date”) and shall continue to provide such Services for the duration of the Initial Term and each subsequent Renewal Period specified in the applicable Service Order Form, unless and until:
(a) these Terms and Conditions are terminated in accordance with its terms; or
(b) subject to clause 2.6, either Party gives not less than 90 days’ written notice to terminate the applicable Service Order Form before the Initial Term (or the relevant Renewal Period), in which case the Service Order Form will terminate automatically at the end of the Initial Term (or the relevant Renewal Period).
2.6 For avoidance of doubt there is no option to terminate a Service Order Form for convenience during the Initial Term. A multi-year Service Order Form will exist for the full Initial Term. Additionally, if the Service Order Form renews in accordance with clause 2.5, there is no option to terminate for convenience during the Renewal Period. Termination under clause 15 or any other provision hereof is not affected.
3. Service Order Forms
3.1 Each Service Order Form shall be agreed in the following manner:
(a) Customer shall ask Supplier to provide any or all of the Available Services and provide Supplier with as much information as Supplier reasonably requests in order to prepare a draft Service Order Form for the Available Services requested;
(b) following receipt of the information requested from Customer, Supplier shall provide Customer with a draft Service Order Form;
(c) Customer shall complete the Service Order Form, sign and return it to Supplier;
(d) Supplier shall review and, once agreed, countersign the Service Order Form.
3.2 Once a Service Order Form has been agreed and signed, no amendment shall be made to it except in accordance with clause 19.2.
3.3 Each Service Order Form shall be part of these Terms and Conditions and shall not form a separate contract to it.
3.4 If Customer issues purchase orders, such orders will be binding only with respect to Software and/or Services ordered, the Fees therefore, and delivery location(s). Terms printed on the face of and/or pre-printed terms on or attached to any purchase order that are in addition to or conflict with the Framework Services Agreement shall be null and void.
4. Supplier’s Obligations
4.1 Supplier hereby grants a non-exclusive, non-sublicensable and non-transferable license to Customer, on and subject to the terms and conditions of the Framework Services Agreement, to allow any Users (up to the total number of User licenses specified in the Service Order Form) to access the Software through Hosting Services that conform to International Standard on Assurance Engagements (ISAE) No. 3402 devised by the International Auditing and Assurance Standards Board, and to use the Software solely for Customer's business purposes.
Software and Services Warranty
4.2 Supplier warrants that the Software will operate substantially in accordance with its published documentation and that the Services will be performed within a good and workmanlike manner consistent with applicable industry standards.
4.3 The warranty in clause 4.2 shall not apply to the extent of any non-conformance which is caused by use of the Software contrary to Supplier's instructions or modification or alteration of the Software by any party other than Supplier or Supplier's duly authorized contractors or agents. If the Software does not conform to the foregoing warranty, the Supplier will, at its expense, use all reasonable commercial efforts to correct any such non-conformance promptly, or provide Customer with an alternative means of accomplishing the desired performance.
4.4 Notwithstanding the foregoing, Supplier:
(a) PROVIDES ALL SOFTWARE, DOCUMENTATION AND OTHER PRODUCTS ON AN “AS IS” BASIS, AND does not warrant that Customer’s use of the Software and the Services will be uninterrupted or error-free;
(b) DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, TITLE, and non-fringment, and all warranties arising from course of dealing, usage, or trade practice;
(c) MAKES NO WARRANTY OF ANY KIND THAT SOFTWARE, DOCUMENTATION OR ANY SERVICES OR RESULT OF THE USE THEREOF WILL MEET CUSTOMER’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE SYSTEMS;
(d) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and Customer acknowledges that the Services and documentations may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
4.5 All warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from the Framework Services Agreement.
4.6 The Framework Services Agreement shall not prevent Supplier from entering into similar agreements with third parties.
Maintenance and Support Services
4.7 Supplier shall use commercially reasonable efforts to make the Services (other than the Implementation Services, and technical support which is separately specified below) available 24 hours a day, seven days a week, and to ensure that planned maintenance is not performed during Normal Business Hours. Supplier agrees to use all reasonable efforts to give Customer at least six Normal Business Hours’ advance notice of any interruption of the hosting equipment, facility, Software or other aspects of the Hosting Services (Maintenance Events).
4.8 Maintenance includes all regularly scheduled error corrections, software updates and upgrades limited to improvements to features described in the Service Order Form and/or in the Statement of Work. Support for additional features developed by Supplier, may be purchased separately at Supplier's then current rates.
4.9 Supplier shall maintain and update the Software. Should Customer determine that the Software includes a defect, Customer may at any time file error reports. During maintenance periods, Supplier may, at its discretion, upgrade versions, install error corrections and apply patches to the hosted systems. Supplier shall use all reasonable efforts to avoid unscheduled downtime for Software maintenance.
4.10 Supplier shall provide Customer with technical support services. Customer personnel named as Customer Support Representatives (CSRs) in the Service Order Form shall be authorized to contact Supplier for technical support services. Supplier shall provide technical support services only to that specified set of CSRs. Supplier shall provide Supplier Support Engineers (SSEs) named in the Service Order Form who are assigned to Customer account. The SSEs shall handle support calls from Customer's CSRs and shall maintain continuity of knowledge of Customer account history. Supplier shall use reasonable efforts to provide continuity of SSEs.
4.11 Supplier technical support shall accept voicemail and e-mail incident submittal from CSRs 24 hours a day, 7 days a week. Supplier technical support call center shall accept calls for English language telephone support during the hours of 8.30 am to 5.00 pm time E.S.T. each Business Day. (“Normal Business Hours”). Supplier shall use reasonable efforts to process support requests, issue trouble ticket tracking numbers if necessary, determine the source of the problem and respond to Customer during the same Business Day, with a typical daytime response within 4 hours.
4.12 Supplier shall provide monitoring of its Hosting Services 24 hours a day, seven days a week. Supplier shall notify the CSRs of Maintenance Events (as defined in clause 4.7 that may affect the availability of the Hosting Services via status.shesoftware.com.
4.13 The Service Level Arrangements described below shall apply with effect from the date the Implementation Services have been satisfactorily completed.
4.14 Supplier shall use its commercially reasonable efforts to provide availability of at least 99.9% on average over any 30-day period. Availability does not include Maintenance Events, Customer-caused or third party-caused outages or disruptions (except to the extent that such outages or disruptions are caused by those duly authorized third parties sub-contracted by Supplier to perform the Services), or outages or disruptions attributable in whole or in part to force majeure events within the meaning of clause 16.
4.15 For avoidance of doubt, ‘availability’ is defined as the ability of the services and systems providing the Software to respond to a legitimately formatted request at the hosting facility’s Internet endpoint. Local issues affecting access to the Software from within Customer network or general issues affecting Internet traffic and which are outside of the control of Supplier do not constitute unavailability of the Software.
4.16 The preceding Service Level Arrangements state Customer's full and exclusive right and remedy, and Supplier's only obligation and liability in respect of, the performance and/or availability of the Service.5. Customer’s Use of Services and Obligations
5.1 Customer shall:
(a) provide Supplier with all necessary co-operation in relation to the Framework Services Agreement, and with all necessary access to such information as may be required by Supplier in order to render the Services, including but not limited to Customer Data, security access information and software interfaces to Customer's other business applications;
(b) provide such personnel assistance, including Customer Account Team and other Customer personnel, as may be reasonably requested by Supplier from time to time. Customer Account Team shall consist of the personnel listed in the Service Order Form. Customer shall use reasonable efforts to ensure continuity of its personnel assigned toa Service Order Form, if any;
(c) comply with all applicable laws and regulations with respect to its activities under a Service Order Form;
(d) obtain and shall maintain all necessary licenses, consents, and permissions necessary for Supplier, its contractors and agents to perform their obligations under a Service Order Form, including without limitation the Services;
(e) ensure that its network and systems comply with the relevant specifications provided by Supplier from time to time;
(f) be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to Supplier’s data centers, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to Customer's network connections or telecommunications links or caused by the internet;
(g) use reasonable efforts to prevent any unauthorized access to, or use of, the Software and notify Supplier promptly of any such unauthorized access or use;
(h) provide front-line support to Users who are not the designated CSRs. However, Customer's designated CSRs may contact Supplier technical support in order to report problems from Users that Customer's designated CSRs cannot resolve themselves after they have performed a reasonable level of diagnosis;
(i) carry out all other Customer responsibilities set out in the Framework Services Agreement in a timely and efficient manner. In the event of any delays in Customer's provision of such assistance as agreed by the parties, Supplier may adjust any timetable or delivery schedule set out in a Service Order Form as reasonably necessary; and
(j) provide references to prospective Supplier’s customers at Supplier's reasonable request, including phone calls and site visits.
5.2 In relation to Users, Customer shall ensure that:
(a) the maximum number of users that it authorizes to access and use the Software does not exceed the number of User licenses specified in the Service Order Form, and that any User license is used only by the relevant individual User unless that license has been reassigned in its entirety to another individual User (in which event the previous User shall no longer have any right to access or use the Software);
(b) each User keeps the log-in details of their account confidential and regularly changes any passwords; and
(c) each User complies with all applicable laws and regulations and the terms of the Framework Services Agreement as appropriate.
5.3 Customer shall not:
(a) knowingly store, distribute or transmit any Virus, or any material through the Hosting Services that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; depicts sexually explicit images; promotes unlawful violence; is discriminatory based on race, gender, color, religious belief, sexual orientation, disability; or in a manner that is otherwise illegal or causes damage or injury to any person or property; and Supplier reserves the right, without liability or prejudice to its other rights to Customer, to disable Customer’s access to any material that breaches the provisions of this clause.
(b) attempt to copy, duplicate, modify, create derivative works from or distribute all or any portion of the Software except to the extent expressly set out in the Framework Services Agreement or as may be allowed by any applicable law which is incapable of exclusion by agreement between the Parties; or
(c) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software, except as may be allowed by any applicable law which is incapable of exclusion by agreement between the Parties; or
(d) access all or any part of the Software or Hosting Services in order to build a product or service which competes with the Software and/or the Services; or
(e) use the Software or Hosting Services to provide services to third parties except with the prior written agreement of Supplier; or
(f) 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 Users, or
(g) subject to clause 19.3, transfer, temporarily or permanently, any of its rights under the Framework Services Agreement, or
(h) attempt to obtain, or assist third parties in obtaining, access to the Software, other than as provided under this clause 5.3; or
(i) allow the maximum number of users that it authorizes to access and use the Software to exceed the number of User licenses specified in the Service Order Form, nor allow any User license to be used by more than one individual User unless that license it has been reassigned in its entirety to another individual User (in which event the previous User shall no longer have any right to access or use the Software).
5.4 The rights provided under this clause 5 are granted to Customer only and shall not be considered granted to any subsidiary or holding company of Customer.6. Implementation and Acceptance
6.1 Supplier shall:
(a) use reasonable efforts to perform the Implementation Services as specified in the Service Order Form and/or in the Statement of Work;
(b) appoint Supplier's Project Manager, who shall have the authority to bind Supplier contractually on all matters relating to the applicable Service Order Form. Supplier shall use reasonable efforts to ensure continuity of Supplier's Project Manager, but has the right to replace him or her from time to time where reasonably necessary in the interests of Supplier's business; and
(c) provide training in accordance with the Service Order Form.
6.2 Customer shall appoint Customer's Project Manager, who shall have the authority to contractually bind Customer on all matters relating to a Service Order Form. Customer shall use reasonable efforts to ensure continuity of Customer's Project Manager;
6.3 Supplier and Customer shall co-operate in implementing the Services in accordance with the implementation provisions in the Service Order Form and/or the Statement of Work.
6.4 Within five days of Supplier's delivery to Customer of the Implementation Services, Customer shall review the Configuration to confirm that it functions in material conformance with the applicable portion of the Service Order Form and/or the Statement of Work. If the Configuration fails in any material respect to conform with such provisions, Customer shall give Supplier a detailed description of any such non-conformance ("Error"), in writing, within the five-day review period.
6.5 With respect to any Errors, Supplier shall use reasonable efforts to correct any such Error within a reasonable time and, on completion, submit the corrected Configuration to Customer. The provisions of this clause 6.5 shall then apply again, up to three additional times. If Supplier is unable to correct such Error after three attempts, either Party may terminate the applicable Service Order Form without further liability to the other Party.
6.6 On accepting the Configuration, Customer shall sign Supplier’s acceptance certificate. In any case, if Customer does not provide any written comments in the five-day period specified in clause 6.5 above, or if the Configuration is found to conform with the applicable portion of the Service Order Form and/or the Statement of Work, the Configuration shall be deemed accepted. For the avoidance of doubt, any use of the Software by Customer in a live environment, after it has been rolled out to Customer’s employees for operational purposes, will be treated as acceptance by Customer and any failure to sign Supplier’s acceptance certificate shall not relieve Customer of its obligations to make payment of the Fees. Any further Implementation Services provided by Supplier after acceptance or deemed acceptance shall not alter the status of that acceptance.
7. Changes to Services
7.1 Customer acknowledges that Supplier may amend, develop and update the Software in its discretion from time to time without notice to or requiring any consent from Customer, provided that the amended developed or updated Software shall continue to comply with the warranty in clause 4.2.
8. Customer Data and Data Protection
8.1 Customer shall own all rights, title and interest in and to all of Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of Customer Data.
8.2 Both Parties agree to comply with all applicable privacy and data protection laws, as well as other applicable regulations and directives, in their creation, collection, receipt, access, use, storage, disposal and disclosure of personal information.
8.3 In the event of any loss or damage to Customer Data, Customer's sole and exclusive remedy shall be for Supplier to use reasonable commercial efforts to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by Supplier as a standard feature of its hosting platform. Supplier 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 Supplier to perform services related to Customer Data maintenance and back-up).
8.4 Notwithstanding the above, it is agreed that Supplier shall be authorized to process anonymized and aggregated Customer Data with the anonymous data of other customers, for the purpose of creating and, at its discretion, publishing benchmarking information.
8.5 Customer shall be entitled to unlimited data storage relating to its use of the Software and Services, subject to a “reasonable use” policy.
9. Charges and Payment
9.1 Customer shall pay the Implementation Services Fees and the Annual Software License Fees set out in the Service Order Form for the configuration, use, maintenance and support of the Software.
9.2 Customer shall reimburse Supplier for all actual, reasonable travel expenses including, but not limited to, airfare, hotel and meals incurred by Supplier in performance of the Services.
9.3 All amounts and fees applicable to any Service Order Form are exclusive of federal, state, local and other applicable sales taxes, which shall be added to Supplier's invoice(s) at the appropriate rate.
9.4 Supplier shall invoice Customer upon the date of acceptance of a Service Order Form and then in advance of each anniversary of the Contract Start Date such that Supplier can expect to receive payment before the anniversary of the Contract Start Date. Unless otherwise specified in a Service Order Form, Supplier shall be entitled, with effect from each anniversary of the Contract Start Date, to increase the Fees by 5%, calculated from the date of the last increase in the Fees (or Contract Start Date for the first such increase).
9.5 Customer shall provide Supplier with such paperwork as is necessary to enable Supplier to invoice Customer as specified in clause 9.4.
9.6 Each invoice is due and payable 30 days after the invoice date. If Supplier has not received payment before the anniversary of the Contract Start Date, and without prejudice to any other rights and remedies of the Supplier:
(a) Supplier may, without liability to Customer, disable Customer’s account and the passwords and access of Customer and its Users to all or any part of the Software, and Supplier shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
(b) commencing on the due date of the invoice and continuing until fully paid, whether before or after judgment, interest shall accrue on such due amounts at the greater of: (i) an annual rate equal to 4% over the per annum rate of prime (as reported in The Wall Street Journal (U.S., Eastern Edition)) or (ii) the maximum rate permissible under applicable law, as both determined at the date the relevant invoice was issued.
10. Proprietary Rights
10.1 Customer acknowledges and agrees that Supplier and/or its licensors own all intellectual property rights in the Software and the Services. Except as expressly stated herein, Customer is not granted any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licenses in respect of the Software, Services or any related documentation. To the extent necessary, Customer hereby assigns to Supplier any intellectual property rights in the Software and the Services that may be developed by Customer.
10.2 Supplier confirms that it has all the rights in relation to the Software that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of the Framework Services Agreement.
10.3 This clause 10 shall survive termination of any part or the whole of the Framework Services Agreement, however arising.
11.1 Each Party may be given access to Confidential Information from the other Party in order to perform its obligations under the Framework Services Agreement. A Party's Confidential Information shall not include information that:
(a) is or becomes publicly known other than through any act or omission of the receiving Party; or
(b) was in the other Party's lawful possession before the disclosure; or
(c) is lawfully disclosed to the receiving Party by a third party without restriction on disclosure; or
(d) is independently developed by the receiving Party, which independent development can be shown by written evidence; or
(e) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
11.2 Each Party shall hold the other's Confidential Information in confidence and, unless required by law, 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 the Service Order Form or as expressly permitted by these Terms and Conditions.
11.3 Each Party shall take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms hereof.
11.4 Neither Party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
11.5 This clause 11 shall survive termination of any part or the whole of the Framework Services Agreement, however arising.
12.1 The Parties consent to the publication of a press release or other public announcement by either party regarding the entry into the Framework Services Agreement (with written approval from Customer).
12.2 Customer consents to Supplier using, and hereby grants a non-exclusive, worldwide, royalty free, perpetual, irrevocable, fully paid up, transferable, sub-licensable license, to Supplier to use: (i) Customer’s corporate logo (including any trademark, trade dress and other intellectual property rights) on Supplier’s website and/or in Supplier’s other promotional materials (subject to written approval from Customer), and (ii) any solution developed under the Framework Services Agreement (including copyright and any other intellectual property rights) to develop case studies and other promotional material illustrating practical use of the solution (subject to written approval from Customer).
13.1 Supplier shall defend Customer, its officers, directors and employees against any claim that the Software infringes any patent effective as of the Contract Start Date, copyright, database right or right of confidentiality, and shall indemnify Customer for any amounts awarded against Customer in judgment or settlement of such claims, provided that:
(a) Supplier is given prompt notice of any such claim;
(b) Customer provides reasonable co-operation to Supplier in the defense and settlement of such claim, at the Supplier's expense; and
(c) Supplier is given sole authority to defend or settle the claim.
13.2 In the defense or settlement of the claim, Supplier may obtain for Customer the right to continue using the Software, replace or modify the Software so that it becomes non-infringing or, if such remedies are not reasonably available, terminate a Service Order Form without liability to Customer. Supplier shall have no liability if the alleged infringement is based on:
(a) a modification of the Software by anyone other than Supplier; or
(b) Customer's use of the Software in a manner contrary to the instructions given to Customer by Supplier; or
(c) Customer's use of the Software after notice of the alleged or actual infringement from Supplier or any appropriate authority.
13.3 This clause 13 and clause 14 state Customer’s sole and exclusive rights and remedies, and Supplier’s entire obligations and liability, for patent, copyright, database or right of confidentiality infringement.
13.4 This clause 13 shall survive termination of any part or the whole of the Framework Services Agreement, however arising.
14. Limitation of Liability
14.1 EXCEPT FOR OBLIGATIONS OF CONFIDENTIALITY AS SET FORTH IN CLAUSE 11, EACH PARTY’S TOTAL AGGREGATE LIABILITY IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR BREACH OF STATUTORY DUTY), MISREPRESENTATION (WHETHER INNOCENT OR NEGLIGENT), RESTITUTION OR OTHERWISE, ARISING IN CONNECTION WITH THE PERFORMANCE OR CONTEMPLATED PERFORMANCE OF THE FRAMEWORK SERVICES AGREEMENT SHALL BE LIMITED TO THE GREATER OF (I) THE TOTAL AMOUNT INVOICED TO, AND PAID AND PAYABLE BY, CUSTOMER HEREUNDER OR (II) $500,000.
EXCEPT FOR EACH PARTY’S OBLIGATIONS OF CONFIDENTIALITY AS SET FORTH IN CLAUSE 11, NEITHER PARTY SHALL BE LIABLE WHETHER IN TORT (INCLUDING FOR NEGLIGENCE OR BREACH OF STATUTORY DUTY), CONTRACT, MISREPRESENTATION (WHETHER INNOCENT OR NEGLIGENT), RESTITUTION OR OTHERWISE FOR ANY LOSS OF PROFITS, LOSS OF BUSINESS, DEPLETION OF GOODWILL AND/OR SIMILAR LOSSES OR LOSS OR CORRUPTION OF DATA OR INFORMATION, OR PURE ECONOMIC LOSS, OR FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL LOSS COSTS, DAMAGES, CHARGES OR EXPENSES HOWEVER ARISING UNDER THE FRAMEWORK SERVICES AGREEMENT.
(a) arising under or in connection with the Framework Services Agreement;
(b) in respect of any use made or conclusions drawn by Customer of the Services, the Software, the Configuration or any part of them; and
(c) in respect of any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including negligence) arising under or in connection with the Framework Services Agreement.
15.1 Without prejudice to any other rights or remedies to which the Parties may be entitled, either Party may terminate a Service Order Form or the Framework Services Agreement in whole or in part, at that Party’s sole discretion, without liability to the other if the other Party:
(a) commits a material breach of any of the terms of the Framework Services Agreement 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; or
(b) becomes insolvent;
(c) is generally unable to pay, or fails to pay, its debts as they become due;
(d) files, or has field against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law;
(e) makes or seeks to make a general assignment for the benefit of its creditors;
(f) applies for, or consents to the appointment of a trustee, receiver or custodian for a substantial part of its property or business;
(g) ceases, or threatens to cease, to trade; or
(h) takes or suffers any similar or analogous action to any of the foregoing in any jurisdiction in consequence of debt.
15.2 Without prejudice to any other rights or remedies to which the Parties may be entitled, Supplier may terminate any part or the whole of the Framework Services Agreement without liability to Customer if there is a change of control of Customer. Change of control shall mean: (i) a consolidation or merger of Customer with or into any other person in competition with Supplier, (ii) a sale or other disposition of all or a substantial part of the properties and assets of Customer in a single transaction or in a series of related transactions with a competitor of Supplier, or (iii) the acquisition of “beneficial ownership” by any “person” or “group”, who is a competitor of Supplier, of voting securities of Customer representing more than 50% of the voting power of all outstanding voting securities of Customer. In addition, for the purposes of this definition, the terms “person,” “group” and “beneficial owner” shall have the meanings set forth in the Securities Exchange Act of 1934, as amended, whether or not applicable.
15.3 On termination of the Terms and Conditions for any reason:
(a) all existing Service Order Forms shall automatically terminate;
(b) each Party shall return and make no further use of any equipment, property, materials, Confidential Information, and other items (and all copies of them) belonging to the other Party;
(c) Supplier shall destroy or otherwise dispose of any of Customer Data in its possession unless Supplier receives, no later than ten days after the effective date of the termination of these Terms and Conditions, a written request for the delivery to Customer of the then most recent back-up of Customer Data. Supplier shall use reasonable commercial efforts to deliver the back-up to Customer within 30 days of its receipt of such a written request, provided that Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). Customer shall pay all reasonable expenses incurred by Supplier in returning or disposing of Customer Data; and
(d) the accrued rights of the Parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.
16. Force Majeure
16.1 Neither Party shall be in breach of the Framework Services Agreement nor liable for delay in performing, or failure to perform, any of its obligations under the Framework Services Agreement if such delay or failure results from events, circumstances or causes beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Supplier or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors. In such circumstances the affected Party shall be entitled to a reasonable extension of the time for performing such obligations, provided that if the period of delay or non-performance continues for six months, the Party not affected may terminate the affected Service Order Form(s) by giving 30 days' written notice to the other Party.
17.1 Any notice required to be given under the Framework Services Agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other Party at its address set out herein, or such other address as may have been notified by that Party for such purposes. Notice may include changes in key personnel such as, but not limited to, Customer’s Project Manager(s), Users, CSRs, Supplier’s SSEs, etc.
17.2 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 at the time at which it would have been delivered in the normal course of post.
17.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution. A notice given hereunder is not valid if sent by e-mail and, for the avoidance of doubt, "writing" shall not include e-mail for the purposes of this clause.
18. Non poaching of Staff
18.1 Both parties agree that during the term of the Framework Services Agreement and for a period of 12 months after its termination, neither party shall, without the prior written consent of the other, solicit, or permit any subsidiary or associate to solicit, the employment or engagement of any employee or contractor of the other party who has been engaged in the performance of the Framework Services Agreement or any Service Order Form, whether or not the acceptance of such offer would cause the employee or contractor to be in breach of his or her contract with such party.
Notwithstanding the foregoing, any person’s response to, and subsequent hiring as a result of, general solicitation through advertising shall not constitute a violation of this provision.
19. Miscellaneous and General
19.1 Nothing herein is intended to, or shall be deemed to, establish any partnership or joint venture, an employer/employee or agency relationship between any of the Parties, the agent of another party, nor authorize any Party to make or enter into any commitments for or on behalf of any other Party.
19.2 No variation of the Framework Services Agreement shall be effective unless it is in writing and signed by the Parties (or their authorized representatives).
19.3 The Framework Services Agreement is for the sole benefit of the Parties hereto and their respective successors and assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of the Framework Services Agreement.
19.4 Customer shall not, without the prior written consent of Supplier, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations hereunder.
19.5 Supplier may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations hereunder.
19.6 If any provision (or part of a provision) of the Framework Services Agreement 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.
19.7 A waiver of any right under the Framework Services Agreement 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.
19.8 Unless specifically provided otherwise, rights arising under the Framework Services Agreement are cumulative and do not exclude rights provided by law.
19.9 The Framework Services Agreement and any documents referred to in it constitute the whole agreement between the Parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter hereof.
19.10 The Framework Services Agreement is governed by, and construed in accordance with, the law of the State of Illinois excluding its conflict of laws provisions.
19.11 Any legal suit, action, or proceeding arising out of or based upon the Framework Services Agreement, or the transactions contemplated hereby or may be instituted in the federal courts of the United States of America or the courts of the State of Illinois in each case located in any court of competent jurisdiction in the Chicago metropolitan area, and each Party irrevocably submits to the non-exclusive jurisdiction of such courts in any such suit, action, or proceeding.
19.12 Disputes. Any action to enforce or interpret the Framework Services Agreement, or to resolve disputes with respect thereto, may be submitted to mediation by the agreement of the parties; provided that, if no resolution is so obtained, a dispute (except with respect to disputes regarding intellectual property rights) shall then be resolved by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association prior to any litigation. Any party may commence arbitration by sending a written demand for arbitration to the other party. Such demand shall set forth the nature of the matter to be resolved by arbitration. The place of mediation and/or arbitration shall be the Chicago, Illinois metropolitan area. All decisions of the arbitrator shall be final, binding, and conclusive on the parties. Judgment upon a final arbitration decision may be entered by any court of competent jurisdiction in the Chicago metropolitan area. The prevailing party shall be entitled to reimbursement of attorney fees, costs, and expenses incurred in connection with the arbitration. Notwithstanding the foregoing, Customer acknowledges that, in the event of imminent, irreparable harm to it, the rights of Supplier hereunder may not be adequately protected by remedies available to it at law and therefore Customer agrees that Supplier shall be entitled to seek injunctive relief in addition to all legal remedies for any breach thereof. Disputes regarding intellectual property rights may be referred to a court of competent jurisdiction at any time.