In this Agreement and each Statement of Work, the following definitions have the following meanings:
Acceptance Criteria shall have the meaning set out in Clause 10 or a Statement of Work;
Acceptance Tests means the acceptance tests (if any) set out in a Statement of Work to test that the Acceptance Items operate in accordance with the requirements of the Application Specification, agreed configuration, Services description or any other requirement as specified in the relevant Statement of Work;
Agreement means the contract between the Supplier and the Company which consists of these terms and conditions contained within the main body of the Agreement, the relevant Service Schedule(s), the relevant Statement(s) of Work, the Order(s), the Service Operating Manual and any other documents expressly incorporated by reference.
Application Specification means the specification of the Supplier Application as set out in the Statement of Work;
Applicable Terms means the terms of this Agreement on which the Services will be purchased by the Company save only for the details that are required to be entered into a Statement of Work in accordance with Clause 2.1;
Authorised Users means those employees, agents and independent contractors of the Company who are authorised by the Company to use the Supplier Application and Documentation and other Services;
Auditor means any of the following who is exercising the Company’s rights under Clause 9 (a) the Company; (b) a regulatory authority which has responsibility for the regulation or governance of any of the activities of the Company or any other Group Company; and (c) the agents and representatives of the Company or such regulatory authority;
Available Services means any services, including without limitation any Deliverables, Supplier Application maintenance and support services and/or Hosting Services which the Supplier is willing to provide to the Company and the Group Companies;
Business Continuity Plan means a business continuity and disaster recovery plan to be implemented and maintained by the Supplier;
Business Critical Service Failure means catastrophic business disruption where the business unit or subunit is unable to operate for an extended period and the ticket has been escalated to a high technical level, as defined in the Service Operating Manual;
Business Day means any day other than a Saturday, Sunday or a day that is a public or bank holiday in England;
Charges means the charges for the Services included within the Order and/or any Statement of Work;
Company Data means all data relating to the Group Company or the customers of any of them which is processed, stored, generated, or capable of access by, or which otherwise comes into the possession of, the Supplier, any Subcontractor or any Supplier Personnel including (without limitation) Company Personal Data;
Company Dependency means the obligations of the Company on which the Supplier is dependent to be able to fulfil its obligations under this Agreement, including the Company Dependencies specifically detailed in each Statement of Work;
Company Material means all materials, equipment and tools, drawings, specifications and Company Data supplied by the Company to the Supplier;
Company Personal Data means Personal Data relating to employees, directors or customers of a Group Company and any other Personal Data for which the Group Company is a Data Controller;
Confidential Information means all information of a confidential or proprietary nature relating to the business, prospects or activities of the party in question which is given to, generated by, or otherwise comes into the possession of the other party in the course of the negotiation or performance of this Agreement or any Statement of Work;
Control has the meaning set out in section 1124 Corporation Tax Act 2010;
Default means a breach of any term of this Agreement or any tortious act or statement, breach of statutory duty, or misrepresentation that gives rise to liability under any Laws
Deliverable means a document, plan, program or other product which is included in the Services or the Supplier is obliged to provide to the Company in the course of providing Services and/or the Supplier Application including but not limited to the Developed Software and includes all drafts and working papers created for the purpose of producing the same;
Developed Software means any bespoke software to be developed specifically for the Company pursuant to any Statement of Work;
Dispute means any dispute, difference or question of interpretation arising out of or in connection with this Agreement, including any dispute, difference or question of interpretation relating to the Services;
Documentation means the operating manuals, user instruction manuals, technical literature, specifications and other documentation relating to the Supplier Application;
DPA means all applicable data protection and privacy legislation in force from time to time including the Data Protection Act 2018 and the General Data Protection Regulation (Regulation (EU) 2016/679) and all associated regulations, rules, guidelines and best practice in relation to data protection and any replacements and/or re-enactments of them particularly in the event the UK leaves the EU;
Employee Liabilities means all liabilities, including but not limited to claims for redundancy payments, unlawful deductions from wages, unfair, wrongful or constructive dismissal compensation, compensation for age, sex, race or disability discrimination or discrimination on the grounds of religion, belief, age or sexual orientation or claims for equal pay, compensation for less favourable treatment of part-time workers, and any other claims whether in tort (including negligence), contract or statute or otherwise, and any demands, actions, proceedings and any award, compensation, damages, tribunal awards, fine, loss, order, penalty, disbursement, payment made by way of settlement and costs and expenses reasonably incurred in connection with a claim or investigation, and any expenses and legal costs on an indemnity basis;
Employment Costs means all costs associated with employment including all wages, taxes, national insurance, pension contributions and other costs related to the same;
Effective Date means the date of this agreement;
Equipment means all network, dedicated server, hardware, devices, managed router, firewall devices, software managed devices, loader balances, VPN whether being used by the Supplier to provide the Services, or by the Company to receive them;
Expiry Date means the date this Agreement is terminated in accordance with its terms;
Good Industry Practice means the exercise of the degree of skill, diligence, prudence and foresight that one would reasonably and ordinarily expect from a person skilled and experienced in the practice or activity in question;
Group Company includes the Company and each undertaking that is, at the time in question and from time to time, a parent undertaking, or subsidiary undertaking of a parent undertaking or the Company (the terms parent undertaking and subsidiary undertaking being interpreted in accordance with section 1162 of the Companies Act 2006)
Hosting Services means the services that the Supplier provides to allow Authorised Users to access and use the Supplier Application, including hosting set-up (i.e. configuration and implementation) and on-going hosting services, as set out in Statement of Work;
Insolvency Event means an event where a person it is unable to pay its debts (within the meaning of sections 123, 267 or 268, as applicable, of Insolvency Act 1986); proposes or becomes subject to a voluntary arrangement or convenes a meeting of its creditors to consider such a proposal or, being a company has a proposal for a compromise or arrangement sanctioned by the court pursuant to section 899 Companies Act 2006 (save for the sole purpose of a solvent reconstruction or amalgamation); has a receiver or manager appointed over any of its assets, undertaking or income; takes any step towards its winding-up or bankruptcy as applicable (save, in the case of a company, a solvent liquidation for the sole purpose of effecting a reconstruction or amalgamation) or is subject to a petition issued by any court for its winding-up or bankruptcy (as applicable) that is not withdrawn upon the party’s application; being a company, has an administrator appointed in respect of it or is the subject of an application for administration filed at any court or a notice of appointment of an administrator filed at any court or a notice of intention to appoint an administrator filed at any court by any person; being a company, is the subject of a notice to strike off the register at Companies House; or has any distraint, execution or other process levied or enforced on any of its property
Intellectual Property Rights means any and all intellectual property rights including patents, trademarks, design rights, copyright (including without limitation in the object code and source code, in drawings, plans, specifications, designs and computer software and including all ideas, concepts, themes, characters, stories and places contained in or forming part of any copyrightable work) rights in the databases, domain names, topography rights, know-how, look and feel, rights in confidential information and all similar rights (whether or not registered or capable of registration and whether subsisting in the United Kingdom or any other part of the world) together with the right to apply for registration of and/or register such rights and any and all goodwill relating or attached thereto and all extensions and renewals thereof;
Key Milestone means a Milestone that is specified to be a key milestone in any Statement of Work or Project Plan;
Laws means (a) all laws (including the common law); (b) all regulations, policies and codes of conduct which are legally-binding; or (c) directions of a regulatory authority with which the Company and the other Group Companies are reasonably required to comply and which, in each case, are applicable to the business of the Company and the other Group Companies or to any activities of the parties undertaken pursuant or in relation to this Agreement;
Licenced IP means any Supplier IP and/or Third Party IP identified as such in any Statement of Work;
Longstop Date means the longstop date identified in relation to completion of any Key Milestone in a Project Plan or where no Longstop Date has been agreed, within thirty (30) Business Days following the date specified for completion of that Key Milestone;
Losses means losses, liabilities, damages, wasted expenditure, costs and expenses (including legal fees on a solicitor/own client basis and all other costs related to the investigation, prosecution or defence of legal claims);
Milestone means any act, event or achievement which is specified to be a milestone in a Statement of Work or Project Plan;
Modification means any Upgrade, New Version or other release of the Supplier Application issues by the Supplier;
New Version means any new version of the Supplier Application which from time to time is publicly marketed and offered for purchase by the Supplier in the course of its normal business, being a version which contains such significant differences from the previous versions as to be generally accepted in the marketplace as constituting a new product;
“Personal Data” means personal data (as defined in the DPA) to which the Supplier may (by or on behalf of the Company) be granted access, during the course of the provision of the Services.
Project Plan means any project plan which is set out in a Statement of Work or which is required to be prepared and agreed in accordance with a Statement of Work;
Open Source Software means software which is publicly available (in source code form) on such licence terms that anyone may study, modify, distribute and otherwise commercially exploit that software without attribution, without payment of any royalty and without the requirement to undertake any formalities (such as registering with or entering into a formal agreement with the rights owner);
Order means an order form which sets out the Charges for the Services which will be processed by the Company through the Supplier’s online ordering system;
Regulatory Authority/ies means all governmental, statutory or regulatory bodies and any other competent authorities in any jurisdiction having responsibility for the regulation or governance of any of the activities of the Company or the Supplier;
Representative in relation to a party means the person appointed to such position to manage the day to day relationship between the parties;
Service Level means each of the minimum performance standards set out in in a Statement of Work;
Service Level Default means a failure to meet a Service Level;
Service Live Date means the first date the Services have been delivered to the Company in accordance with the requirements of the Agreement and have become available for use by the Company.
Service Operating Manual means the reference document which describes the mode of operation and support for the Services, including but not limited to service level agreements, processes and standards.
Service Schedule means the Service specific schedule applicable to each relevant Service.
Services means the services which the Supplier is to carry out for the Company under this Agreement as described in the Service Schedule and/or a Statement of Work (including those professional services such as implementation, hosting and maintenance, training, consulting etc.) and/or the Service Operating Manual which are included within, or required for the performance of, a Statement of Work and which shall be fully described in the Statement of Work.
Statement of Work an agreement for the provision of Services by the Supplier to the Company, a template of which is at Schedule 2;
Subcontractor means any subcontractor or supplier (including any other member of the Supplier Group) engaged by the Supplier in connection with this Agreement or the provision of any of the Services;
Supplier Application means the software (and all related Deliverables) described or referred to in a Statement of Work to which the Company is to be given access on the terms of that Statement of Work;
Supplier Group means each undertaking that is, at the time in question and from time to time, a parent undertaking, or subsidiary undertaking of a parent undertaking or the Supplier (the terms parent undertaking and subsidiary undertaking being interpreted in accordance with section 1162 of the Companies Act 2006);
Supplier Personnel means (i) any individual employed or engaged by the Supplier and (ii) the Subcontractor and any individual employed or engaged by the Subcontractor in connection with this Agreement or the provision of any of the Services;
Supplier Premises means premises from which the Supplier, any Subcontractor or any Supplier Personnel provide any part of the Supplier Application and/or Services or in which books and records relating to the Services or this Agreement are stored;
Supplier Resources means the Supplier Personnel, the Subcontractors, Supplier Premises and the systems, tools and other resources of the Supplier;
Term means the period commencing on and from the Effective Date and ending on the Expiry Date, or in the case of a Statement of Work, the period commencing on and from the Statement of Work Commencement Date and ending on the expiry date stated in the Statement of Work;
Third Party IP means any Intellectual Property Rights of and belonging to a third party which form part of and/or are necessary for the use of the Deliverables and/or Services and are identified in any Statement of Work as agreed with the Company as only being licenced to the Company in accordance with Clause 19 (excluding in all cases and for the avoidance of any doubt any Intellectual Property Rights in Company Materials);
TUPE means the Transfer of Undertakings (Protection of Employment) Regulations 2006;
Upgrade means an upgrade of the Supplier Application which corrects faults, adds functionality or otherwise amends or upgrades the Supplier Application, which does not constitute a New Version;
VAT means value added tax as provided for in the Value Added Tax Act 1994;
Statement of Work means an order for the purchase of Services agreed in accordance with the provisions of Clause 2 specifying, among other things, the Services, Supplier Application, Deliverables, Statement of Work Commencement Date, the applicable Charges, the billing period and the other matters identified in the Statement of Work template at Schedule 2 (Services);
Statement of Work Commencement Date means the date for commencement of the Services specified in a Statement of Work