Verostone Hosting Terms and Conditions

MASTER HOSTING AGREEMENT

TERMS AND CONDITIONS

THIS MASTER HOSTING AGREEMENT sets out the terms and conditions governing the contract between Verostone Limited, incorporated and registered in England and Wales with company number 6800902 whose registered office is at 29 Gildredge Road, Eastbourne, East Sussex BN21 4RU (“Verostone”) and a Customer (as defined below) for the Customer’s access to and use of the Services (as defined below).

This Agreement is effective from the date that the Customer executes an Order Form (the “Effective Date”).

CONTENTS:

CLAUSE

1. Interpretation
2. Original Agreement
3. Hosted Licences
4. Additional Hosted Licences
5. Hosted Services
6. Customer Data
7. Supplier’s Obligations
8. Customer’s Obligations
9. Charges and Payment
10. Proprietary Rights
11. Limitation of Liability
12. Term and Termination
13. Conflict
14. Entire Agreement
15. Third Party Rights
16. Governing Law
17. Jurisdiction

SCHEDULE

Schedule 1:  Service Level Agreement

Schedule 2:  Processing, Personal Data and Data Subjects

AGREED TERMS

1. INTERPRETATION

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

Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.

Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical and organisational measures: as defined in the Data Protection Legislation.

Customer: Organisation purchasing Hosting services.

Customer Data: the data inputted by Customer, Permitted Users, or Verostone on Customer’s behalf for the purpose of using the Hosted Services or facilitating Customer’s use of the Hosted Services.

Data Protection Legislation: the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications.

Documentation: the documents made available to Customer by Verostone to Customer from time to time which sets out a description of the Hosted Services and the user instructions for the Hosted Services.

Effective Date: the date of this agreement.

Hosted Licences: the user access licences purchased by Customer pursuant to clause 9.1 which entitle Permitted Users to access and use the Hosted Services and the Documentation in accordance with this agreement.

Hosted Services: the subscription services provided by Verostone to Customer under this agreement from time to time, as more particularly described in the Documentation, permitting Customer’s Permitted Users to access the Software hosted by Verostone.

Initial Subscription Term: the period of 12 months, commencing on the Effective Date.

Migration Services: the services to be provided by Verostone to Customer in connection with the migration of Customer’s on-premise system to a hosted environment, as set out in A Migration Services Order Form.

Normal Business Hours: 8.00 am to 6.00 pm local UK time, each Business Day.

Original Agreement: any Master Software License, Hosted Services and Maintenance Contract between the Verostone and Customer.

Permitted Users: those employees, agents and independent contractors of Customer who are authorised by Customer to use the Hosted Services and the Documentation.

Renewal Period: the period described in clause 12.1.

Software: the online software applications provided by Verostone as part of the Hosted Services.

Subscription Fees: the subscription fees payable by Customer to Verostone for the Hosted Licences, as set out in Schedule1.

Subscription Term: has the meaning given in clause 12.1 (being the Initial Subscription Term together with any subsequent Renewal Periods).

Support Services: the support services to be provided by Verostone as set out in the Original Agreement.

System Performance: the speed, responsiveness and stability of the Software

UK Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.

Virus: any thing or device (including any software, code, file or programme) 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 programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme 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.

1.2 Clause, schedule and paragraph headings shall not affect the interpretation of this agreement.

1.3 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality).

1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however
incorporated or established.

1.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.

1.6 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.

1.7 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this agreement.

1.8 A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this agreement under that statute or statutory provision.

1.9 A reference to writing or written includes faxes but not e-mail.

1.10 References to clauses and schedules are to the clauses and schedules of this agreement; references to paragraphs are to paragraphs of the relevant schedule to this agreement.

2. Original Agreement

The parties agree that the Original Agreement shall continue to apply and remain in force between the parties save to the extent that it conflicts with or is varied by this agreement, in which case the terms of this agreement shall prevail.

3. Hosted Licences

3.1 Subject to Customer purchasing the Hosted Licences in accordance with clause 4.3 and clause 9.1, the restrictions set out in this clause 3 and the other terms and conditions of this agreement, Verostone hereby grants to Customer a non-exclusive, non-transferable right, without the right to grant sublicences, to permit the Permitted Users to access and use the Hosted Services and the Documentation during the Subscription Term solely for Customer’s internal business operations.

3.2 In relation to the Permitted Users, Customer undertakes that:

(a) the maximum number of Permitted Users that it authorises to access and use the Hosted Services and the Documentation shall not exceed the number of Hosted Licences it has purchased from time to time;

(b) it will not allow or suffer any Hosted Licence to be used by more than one individual Permitted User unless it has been reassigned in its entirety to another individual Permitted User, in which case the prior Permitted User shall no longer have any right to access or use the Hosted Services and/or Documentation;

(c) each Permitted User shall keep a secure password for his use of the Hosted Services and Documentation and that each Permitted User shall keep his password confidential.

3.3 In relation to System Performance, Customer undertakes to ensure that:

(a) any locally installed components of the Software are in accordance with the technical requirements specified in the Documentation of the Software.

(b) network connections and bandwidth between local machines and the Hosted Service are within the recommended guidelines as specified in the Documentation of the Software.

3.4 Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Hosted Services that:

(a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;(b) facilitates illegal activity;
(c) depicts sexually explicit images;
(d) promotes unlawful violence;
(e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
(f) is otherwise illegal or causes damage or injury to any person or property;
and Verostone 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.

3.5 Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Hosted Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify Verostone.

4. Additional Hosted Licences

4.1 Subject to clause 4.1 and clause 4.3, Customer may, from time to time during any Subscription Term, purchase additional Hosted Licences in excess of the number set out in Any Subscription Fees Order Form and Verostone shall grant access to the Hosted Services and the Documentation to such additional Permitted Users in accordance with the provisions of this agreement.

4.2 If Customer wishes to purchase additional Hosted Licences, Customer shall notify Verostone in writing. Verostone shall evaluate such request for additional Hosted Licences and respond to Customer with approval or rejection of the request (such approval not to be unreasonably withheld). Where Verostone approves the request, Verostone shall activate the additional Hosted Licences within 5 days of its approval of Customer’s request.

5. Hosted Services

5.1 Verostone shall, during the Subscription Term, provide the Hosted Services and make available the Documentation to Customer on and subject to the terms of this agreement.

5.2 Verostone shall use commercially reasonable endeavours to make the Hosted Services available 24 hours a day, seven days a week, except for:

(a) planned maintenance carried out during the maintenance window of 10.00 pm to 2.00 am UK time; and

(b) unscheduled maintenance performed outside Normal Business Hours, provided that Verostone has used reasonable endeavours to give Customer at least 6 9 Normal Business Hours’ notice in advance.

5.3 The service levels set out in Schedule 1 shall apply to the Hosted Services.

5.4 Verostone will, as part of the Hosted Services provide Customer with the Support Services.

5.5 Verostone will, subject to payment by Customer of the fee set out in A Migration Services Order Form, provide Customer with the Migration Services.

6. Customer data

6.1 Customer shall own all right, title and interest in and to all of Customer Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data.

6.2 In the event of any loss or damage to Customer Data, Customer’s sole and exclusive remedy against Verostone shall be for Verostone to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by Verostone (if any). Verostone 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 Verostone to perform any part of the Hosted Services for which it shall remain fully liable under clause 6.8).

6.3 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 6 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.

6.4 The parties acknowledge that:

(a) if Verostone processes any personal data on Customer’s behalf when performing its obligations under this agreement, Customer is the controller and Verostone is the processor for the purposes of the Data Protection Legislation.

(b) Schedule 2 sets out the scope, nature and purpose of processing by Verostone, the duration of the processing and the types of personal data and categories of data subject.

(c) the personal data may be transferred or stored outside the EEA European Economic Area or the country where Customer and the Permitted Users are located in order to carry out the Hosted Services and Verostone’s other obligations under this agreement.

6.5 Without prejudice to the generality of clause 6.3, Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to Verostone for the duration and purposes of this agreement so that Verostone may lawfully use, process and transfer the personal data in accordance with this agreement on Customer’s behalf.

6.6 Without prejudice to the generality of clause 6.3, Verostone shall, in relation to any personal data processed in connection with the performance by Verostone of its obligations under this agreement:

(a) process that personal data only on the documented written instructions of Customer unless Verostone is required by the laws of any member of the European Union or by the laws of the European Union applicable to Verostone and/or Domestic UK Law (where Domestic UK Law means the UK Data Protection Legislation and any other law that applies in the UK) to process personal data (Applicable Laws). Where Verostone is relying on Applicable Laws as the basis for processing personal data, Verostone shall promptly notify Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit Verostone from so notifying Customer;

(b) not transfer any personal data outside of the European Economic Area and the United Kingdom unless the following conditions are fulfilled:
(i) Customer or Verostone has provided appropriate safeguards in relation to the transfer;
(ii) the data subject has enforceable rights and effective legal remedies;
(iii) Verostone complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and
(iv) Verostone complies with reasonable instructions notified to it in advance by Customer with respect to the processing of the personal data;

(c) assist Customer, at Customer’s cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;

(d) notify Customer without undue delay on becoming aware of a personal data breach;

(e) at the written direction of Customer, delete or return personal data and copies thereof to Customer on termination of the agreement unless required by Applicable Law to store the personal data; and

(f) maintain complete and accurate records and information to demonstrate its compliance with this clause 6 and immediately inform the Company if, in the opinion of the VAR, an instruction infringes the Data Protection Legislation.

6.7 Each party shall ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it).

6.8 Customer consents to Verostone appointing Kaufman, Hall & Associates, Inc as a third-party processor of personal data under this agreement. Verostone confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement substantially on that third party’s standard terms of business. As between Customer and Verostone, Verostone shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause 6.

6.9 Either party may, at any time on not less than 30 days’ notice, revise this clause 6 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to this agreement).

7. Verostone’s obligations

7.1 Verostone undertakes that the Hosted Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.

7.2 In relation to System Performance, Verostone warrants a reasonable and acceptable level of System Performance of the Software within its hosted infrastructure environment during the times of availability specified in clause 5.2:

(a) This shall be based upon a capacity of 100 users;

(b) Where required by Customer, Verostone shall evidence the performance of the Software within its hosted infrastructure environment, using the relevant metrics, measurements and benchmarks relating to:
(i) Concurrency
(ii) Volumes
(iii) Bottlenecking
(iv) Scalability
(v) Software configuration
(vi) Infrastructure resources

7.3 The undertaking at clause 7.1 shall not apply to the extent of any non-conformance which is caused by use of the Hosted Services contrary to Verostone’s instructions, or modification or alteration of the Hosted Services by any party other than Verostone or Verostone’s duly authorised contractors or agents. If the Hosted Services do not conform with the foregoing undertaking, Supplier will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide Customer with an alternative means of accomplishing the desired performance. Such correction constitutes Customer’s sole and exclusive remedy for any breach of the undertaking set out in clause 7.1. Notwithstanding the foregoing, Verostone:

(a) does not warrant that Customer’s use of the Hosted Services will be uninterrupted or error-free; or that the Hosted Services, Documentation and/or the information obtained by Customer through the Hosted Services will meet Customer’s requirements; and

(b) 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 Hosted Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

7.4 This agreement shall not prevent Verostone from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this agreement.

7.5 Verostone warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this agreement.

8. Customer’s obligations

Customer shall:

(a) provide Verostone with:
(i) all necessary co-operation in relation to this agreement; and
(ii) all necessary access to such information as may be required by Verostone;
in order to provide the Hosted Services, including but not limited to Customer Data, security access information and configuration services;

(b) ensure that the Permitted Users use the Hosted Services and the Documentation in accordance with the terms and conditions of this agreement and shall be responsible for any Permitted User’s breach of this agreement;

(c) be, to the extent permitted by law and except as otherwise expressly provided in this agreement, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to Verostone’s data centres, 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.

9. Charges and payment

9.1 Customer shall pay the Subscription Fees to Verostone for the Hosted Licences in accordance with this clause 9 and Any Subscription Fees Order Form and any support fees in accordance with the Original Agreement.

9.2 Verostone shall invoice Customer:

(a) on the Effective Date for the Subscription Fees payable in respect of the Initial Subscription Term and the Migration Fees; and

(b) subject to clause 12.1, at least 30 days prior to each anniversary of the Effective Date for the Subscription Fees payable in respect of the next Renewal Period,
and Customer shall pay each invoice within 30 days after the date of such invoice.

9.3 If Verostone has not received payment within 30 days after the due date, and without prejudice to any other rights and remedies of Verostone:

(a) Verostone may, without liability to Customer, disable Customer’s password, account and access to all or part of the Hosted Services and Verostone shall be under no obligation to provide any or all of the Hosted Services while the invoice(s) concerned remain unpaid; and

(b) interest shall accrue on a daily basis on such due amounts at an annual rate equal to 2% over the then current base rate of the Bank of England from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.

9.4 All amounts and fees stated or referred to in this agreement:

(a) shall be payable in pounds sterling;
(b) are, subject to clause 11.3(b), non-cancellable and non-refundable;
(c) are exclusive of value added tax, which shall be added to Verostone’s invoice(s) at the appropriate rate.

9.5 Verostone shall be entitled to increase the Subscription Fees, the fees payable in respect of the additional Hosted Licences purchased pursuant to clause 4.3 and/or the support fees payable pursuant to clause 5.4 at the start of each Renewal Period upon 90 days’ prior notice to Customer.

10. Proprietary rights

10.1 Customer acknowledges and agrees that Verostone and/or its licensors own all intellectual property rights in the Hosted Services and the Documentation. Except as expressly stated herein, this agreement does not grant Customer any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Hosted Services or the Documentation.

10.2 Verostone confirms that it has all the rights in relation to the Hosted Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this agreement.

11. Limitation of liability

11.1 Except as expressly and specifically provided in this agreement:

(a) Customer assumes sole responsibility for results obtained from the use of the Hosted Services and the Documentation by Customer, and for conclusions drawn from such use. Verostone shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Verostone by Customer in connection with the Hosted Services, or any actions taken by Verostone at Customer’s direction;

(b) 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 this agreement; and

(c) the Hosted Services and the Documentation are provided to Customer on an “as is” basis.

11.2 Nothing in this agreement excludes the liability of Verostone:

(a) for death or personal injury caused by Verostone’s negligence; or
(b) for fraud or fraudulent misrepresentation.

11.3 Subject to clause 11.1 and clause 11.2:

(a) Verostone shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, 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 this agreement; and

(b) Verostone’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement shall be limited to the total hosting fees paid in the previous 12 months..

12. Term and termination

12.1 This agreement shall, unless otherwise terminated as provided in this clause 12, commence on the Effective Date and shall continue for the Initial Subscription Term and, thereafter, this agreement shall be automatically renewed for successive periods of 12 months (each a Renewal Period), unless:

(a) either party notifies the other party of termination, in writing, at least 30 days before the end of the Initial Subscription Term or any Renewal Period, in which case this agreement shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or

(b) otherwise terminated in accordance with the provisions of this agreement;
and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the Subscription Term.

12.2 Without affecting any other right or remedy available to it, either party may terminate this agreement and the Original 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 60 days after being notified in writing to make such payment;

(b) the other party commits a material breach of any other term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;

(c) the other party repeatedly breaches any of the terms of this agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement;

(d) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1)(e) or 123(2) of the Insolvency Act 1986;

(e) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;

(f) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;

(g) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party;

(h) the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;

(i) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;

(j) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within 14 days;

(k) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 12.2(d) to clause 12.2(j) (inclusive);

(l) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or

(m) in the case of termination by Customer only, in the circumstances set out in paragraph 4.5 of Exhibit C to the Original Agreement.

12.3 On termination of this agreement for any reason:

(a) all licences granted under this agreement shall immediately terminate and Customer shall immediately cease all use of the Hosted Services and/or the Documentation;

(b) each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party;

(c) Verostone must destroy or otherwise dispose of any of Customer Data in its possession in accordance with clause 6.6(c), unless Verostone receives, no later than 30 days after the effective date of the termination of this agreement, a written request for the delivery to Customer of the then most recent back-up of Customer Data. Verostone shall use reasonable commercial endeavours 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 Verostone in returning or disposing of Customer Data; and

(d) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced.

13. Conflict

If there is an inconsistency between any of the provisions in the main body of this agreement and the Schedules, the provisions in the main body of this agreement shall prevail.

14. Entire agreement

14.1 These Terms & Conditions and the Original Agreement constitute the entire agreement between the parties and supersede and extinguish all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

14.2 Each party acknowledges that in entering into this agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement.

14.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.

14.4 Nothing in this clause shall limit or exclude any liability for fraud.

15. Third party rights

This agreement does not confer any rights on any person or party (other than the parties to this agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.

16. Governing law
This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.

17. Jurisdiction

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 AGREEMENT

1. Definitions

“Incident” any impairment or reduction whatsoever in the quality, performance or operation of the Software and/or Services.

“Response Time” the time from an Incident being identified by Verostone, or notified to Verostone by Customer, or Service Request being submitted to Verostone (as applicable), until Verostone issues a non-automated email to Customer confirming the steps it will take to resolve the relevant Incident or address the relevant Service Request.

“Resolution Time” the time from an Incident being identified by Verostone or notified to Verostone by Customer, or a Service Request being submitted to Verostone (as applicable), until the relevant Incident or Service Request is resolved to the satisfaction of Customer.

“Service Request” a request for Services from Customer that does not relate to the resolution of a P1- P4 Incident.

2. Monitoring and reporting

a. Verostone shall measure its performance against the Service Levels on a calendar monthly basis and shall report such performance to Customer in writing within 7 days of the end of each calendar month.
b. Verostone acknowledges that in delivering the Software and Services it is responsible for the proactive identification and resolution of Incidents.

Availability of Software

Support Services

3.3. Verostone shall log all Incidents and Service Requests in its [system] which shall record the time taken to respond to and resolve such Incidents and Service Requests.

3.4. The following priority definitions shall apply for the purposes of this Agreement:

3.5. Verostone shall allocate a priority level to each Incident and Service Request in accordance with the above table, acting reasonably, and notify Customer of such allocation. If Customer disagrees with the priority allocation of Verostone it shall be entitled to re-categorise an Incident by notice to Verostone (for which email or telephone will suffice).

3.6. Verostone shall respond to Incidents and Service Requests and use its best endeavours to resolve such Incidents and Service Requests within the following Response Time and target Resolution Time Service

LEVELS:

4. Service Level Failure

4.1 If Verostone fails to meet any Service Level requirement or target (a “Service Level Failure”) Verostone shall, without prejudice to Customer’s rights and remedies, promptly (at its own cost):

a) investigate the underlying causes of the failure to meet the Service Level and preserve any data indicating or relating to the cause of the Service Level Failure;

b) where requested by Customer prepare and deliver to Customer a report identifying the Service Level Failure and its causes;

c) minimise the impact of the Service Level Failure to Customer and take all such steps as may be required so as to prevent the Service Level Failure from recurring;

d) correct the Service Level Failure and meet the relevant Service Level;

e) arrange all such additional resources as may be necessary to perform the Services in accordance with the Service Levels; and

f) advise Customer, as and to the extent requested by Customer, of the status of all remedial efforts and actions being undertaken.

SCHEDULE 2: PROCESSING, PERSONAL DATA AND DATA SUBJECTS