1.1 The following definitions and rules of interpretation apply to these Terms of Business:
means acceptance of the Software in accordance with clause 5.6 and “Accepted” will be construed accordingly.
“Application Support Fees”
means the fees payable for the Application Support Services as set out in the Engagement Letter.
“Application Support Services”
means the services described in the Application Support Schedule.
“Browser Operating Environment”
means the internet browser software running within the operating systems set out in the Browser Operating Environment.
means 9am to 6pm on a Working Day.
means directors, officers, employees, agents or subcontractors of Byte9.
“Byte9 Trade Mark”
means the trade mark set out in the Trade Mark Schedule.
means the core functionality of the Software, as set out in the Development Schedule.
means all materials, content, trademarks data and information provided, or to be provided, by the Customer including any materials described in the Customer Materials Schedule ;
means the primary website of the Customer for marketing purposes, or such other website as may be agreed by the parties from time to time.
means the delivery of, or the granting of access to, the Software or a part of the Software and “Deliver” will be construed accordingly.
means the development services provided by Byte9 under this Agreement, and as set out in the Development Schedule.
means the attached Development Schedule which sets out the Stories, Points and pricing of the Project.
means any documentation necessary to enable a reasonably skilled operator of software to operate the Software.
has the meaning set out in the Engagement Letter.
“Extended Application Support Period”
means any extended period of the provision of Application Support Services commencing in accordance with clause 22, as set out in the Engagement Letter.
means the sums payable to Byte9 for Software and the Services, including as set out in the Engagement Letter including the Application Support Fees.
means Acceptance of the final Story.
means the hosting services provided by Byte9 under this Agreement, and as set out in the Hosting Schedule.
“Initial Application Support Period”
means the initial period of the provision of Application Support Services commencing on the date of Final Acceptance, as set out in the Engagement Letter.
means all copyright and related rights, patents, rights to inventions, utility models, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection.
means any software designed to maliciously infiltrate, interfere with, intercept, expropriate or damage a computer system, data or other information.
means the operating system, integrated applications environment, application software set out in Operating Environment Schedule.
means the amount of development work performed by an average developer in approximately one day.
means the total Stories yet to be developed.
means the individual nominated by the Customer as its key representative for liaising with Byte9 with regard to the provision of Development Services under this Agreement;
“Quality Assurance Tests”
means the tests to be performed on the Software, in respect of its operation in the Browser Operating Environment only, in accordance with clause 5.
“Retained Development Services”
means the amount of development services to be provided by Byte9 under this Agreement on a retained basis (if any), and as set out in the Engagement Letter.
means the Retained Development Services (if any), the Hosting Services (if any), the Development Services and the Application Support Services.
means the software provided by Byte9 under this Agreement, including the Core Stories, the Stories, the Documentation and any parts of the Operating Environment provided or on which any of the foregoing runs (or, as the context requires, any part of any of them) .
means a development cycle of 1 to 4 weeks during which time Byte9 will develop Stories.
means the Story(ies) selected from the Product Backlog to be developed in the current Sprint.
means the description of the objectives and intended benefits of a particular function of the Software as required by a user of the Software.
means the Points required to develop a particular Story, taking into account any risk element, as determined by Byte9 in its sole discretion.
means the total number of Points required to develop the Software, as set out on the Development Schedule on the Effective Date.
means a web based software application.
means any day other than a Saturday or Sunday on which banks are open for trading inLondon.
an update to the Software which enhances the functionality of the Software.
1.2 A “person” includes a natural person, corporate or unincorporated body.
1.3 Unless the context otherwise requires, words in the singular include the plural and in the plural include the singular.
1.4 The words “include” and “including" (or similar) will be deemed to have the words "without limitation" after them.
1.5 A reference to “writing” or “written” includes faxes and e-mail.
1.6 The terms “data controller”, “data processor”, “data subject”, “personal data”, “process” and “processing” will have the meanings ascribed to them under the Data Protection Act 1998 as amended or superseded.
2. Core Stories and Stories
2.1 Byte9 will Deliver the Core Stories as soon as practicable after the Effective Date. The Customer, or Byte9 at the Customer’s request, will undertake the Quality Assurance Tests in respect of the Core Stories as soon as practicable following Delivery.
2.2 Byte 9 will Deliver the Stories in accordance with the Development Schedule. The Customer, or Byte9 at the Customer’s request, will undertake the Quality Assurance Tests in respect of the Stories as soon as practicable following Delivery.
2.3 The Customer will cooperate with Byte9 at all times and will use all reasonable endeavours to promptly provide Byte9 such:
2.3.1 Customer Materials;
2.3.2 access to its computer systems and other facilities;
2.3.3 other assistance;
as Byte9 may reasonably request to enable it to Deliver the Software and provide the Services in accordance with this Agreement.
2.4 The Customer will ensure the Product Owner is available to attend all meetings and is reasonably familiar with the process of agile software development. The Customer may replace the Product Owner on notice to Byte9, but shall use all reasonable endeavours to ensure any such replacements are kept to a minimum.
2.5 Byte9 will not be liable for any delay in the Delivery of the Software if such delay is caused by the Customer, including any failure of the Customer to supply Byte9 with Customer Materials or approvals, or any instructions requested by Byte9.
2.6 Time is not of the essence of this Agreement and any dates are estimates only.
3. Changes to the Development Schedule
3.1 The Product Owner will, on behalf of the Customer:
3.1.1 agree with Byte9 the initial order of priority of the undeveloped Stories forming the Product Backlog;
3.1.2 throughout the provision of the Development Services, in agreement with Byte9, revise and reprioritise the undeveloped Stories forming the Product Backlog on an ongoing basis;
3.1.3 meet with Byte9 to agree which of the undeveloped Stories from the Product Backlog to constitute the Sprint Backlog and be developed in the current Sprint;
3.1.4 meet with Byte9 to review the Stories developed in the current Sprint and agree with Byte9 which Stories shall be submitted to Quality Assurance Testing. Stories will be submitted to Quality Assurance Testing only if they constitute a potentially useful increase in functionality of the Software and are reasonably considered to be capable of passing the Quality Assurance Tests.
3.2 The parties will agree any changes to the Development Schedule required in order to properly record the effect of the implementation of a Change Request.
3.3 Any changes to the number of Story Points attributable to a Story subject of a Change Request, and the number of Story Points attributable to a new Story subject of a Change Request, will be notified to the Customer by Byte9.
3.4 The Customer will confirm to Byte9 in writing whether or not to implement the Change Request.
3.5 Byte9 will be under no obligation to implement any Change Request which would cause the aggregate number of Story Points to exceed the number of Total Points.
3.6 The parties shall seek to reach the agreements referred into in this clause 3 acting reasonably and in good faith.
4.1 The Software will be hosted in accordance with the Hosting Schedule.
5. Quality Assurance Testing
5.1 The parties will cooperate to devise appropriate Quality Assurance Tests for the Core Stories and each Story. All Quality Assurance Tests will be subject to Byte9’s approval.
5.2 Each Quality Assurance Test will be sufficient to determine whether or not (as applicable):
5.2.1 the Core Stories provide the functionality described in the respective part of the Development Schedule within the Operating Environment; or
5.2.2 the relevant Stories provide the functionality described in the respective Story within the Operating Environment.
5.3 Each of the parties will provide the other with all access, assistance and information reasonably requested by the other in order to ensure the Quality Assurance Tests are performed promptly.
5.4 If the relevant Software fails to pass the Quality Assurance Tests, the Customer will provide Byte9 with a notice specifying each instance of failure in reasonable detail. On receipt of such notice, Byte9 will use its reasonable endeavours to carry out any development works necessary (in its opinion) to enable the relevant Software to pass the Quality Assurance Tests. The relevant Software will then be Delivered to the Customer and the Quality Assurance Tests will be performed again. This process will be repeated until the Quality Assurance Tests are passed.
5.5 If the Quality Assurance Tests:
5.5.1 are not commenced within 5 Working Days of Delivery of the relevant Software due to the acts or omissions of the Customer; or
5.5.2 are performed and no notice of failure of the Quality Assurance Test is provided by the Customer within 5 Working Days of the completion of the Quality Assurance Tests;
the Quality Assurance Tests will be deemed to have been passed.
5.6 Software will be deemed to have been Accepted on passing the respective Quality Assurance Test.
6.1 Subject to payment by the Customer to Byte9 of the Fees, Byte9 shall supply and install Updates issued generally by Byte9 to users of the Software after the Effective Date, including physical documentation detailing all changes that are contained within the Updates.
7. Software Releases
7.1.1 Byte9 shall provide quarterly written projections outlining those major software releases and other development relating to the Software expected to be released in the 6 month period from the date of the projection.
7.1.2 Byte9 shall notify the Customer in writing of key details relating to each proposed major software release as early as possible in the development process.
7.2 Byte9 shall provide the Customer at least one month prior to any proposed release date full details (as at the date of such notifications) of each major software release in the form of draft release notes (“Release Notes”).
8. Application Support Services
8.1 Subject to payment by the Customer to Byte9 of the Fees, Byte9 shall provide the Customer with the Application Support Services for the Initial Application Support Period and any Extended Application Support Periods, in accordance with the terms of the Agreement.
9. On-Site Support
9.1 In the event that on-site support is requested the Customer shall at its own expense permit such access to their premises as may be required for the purposes of providing the Application Support Services.
9.2 When visiting Customer premises Byte9 employees or agents shall comply at all relevant times with any reasonable instructions of the Customer and shall in any event comply at all times with the reasonable safety and security procedures of the Customer.
9.3 Travel and all other incidental expenses in providing on-site support must be notified to the Customer and agreed in advance in writing by the Customer unless they amount in total to less than £250. The Customer shall reimburse within 30 days of receipt of an invoice from Byte9 in respect of agreed expenses incurred in providing on-site support save in the case of manifest error.
10. Retained Development Services
10.1 Subject to payment by the Customer to Byte9 of the Fees, Byte9 shall provide the Customer with the Retained Development Services for the Initial Retainer Period and any Extended Retainer Periods, in accordance with the terms of the Agreement.
11.1 During the term of this Agreement:
11.1.1 If required the parties shall meet at regular intervals (at times and places to be agreed) to discuss the development of the Software and any issues relating to performance of the Application Support Services.
11.1.2 The Customer may notify Byte9 of the relevant personnel the Customer reasonably consider desirable to attend each meeting subject to the availability of our relevant personnel on the relevant date(s).
11.2 Nothing in this Clause 11 shall take effect nor be deemed to take effect so as to restrict or limit the discretion of Byte9 in the development of major software releases.
12. Obligations of the Customer
12.1 During the continuance of this Agreement the Customer shall at its own expense:
12.1.1 at the reasonable request of Byte9 allow Byte9 access to the Software and if necessary any other equipment belonging to the Customer and make available to Byte9 any facilities information and services which are reasonably required by Byte9 to enable it to provide the Services;
12.1.2 provide such telecommunication facilities as are reasonably required by Byte9 for testing and diagnostic purposes;
12.1.3 keep Byte9 informed of an e-mail address through which all communications relating to the Services can be made during the term of this agreement;
12.1.4 install and test a Critical Update in a timely period in the manner specified by the Byte9; and agreed by the Customer.
12.1.5 operate the Software, maintain data and the database in accordance with the user manual and operator manual.
12.2 The Customer warrants that it shall comply in all material respect with all applicable laws, regulations and codes of conduct (whether statutory or otherwise) of the United Kingdom, and that all licenses, permissions and consents required for carrying on its business have been obtained and are in full force and effect.
13.1 Byte9 will issue invoices in accordance with the Engagement Letter.
13.2 The Customer will pay Byte9 undisputed Fees that are properly due and payable (together with any applicable VAT) within 30 days of issue of a valid invoice.
13.3 In the event of any good faith dispute with regard to a portion of an invoice, the undisputed portion will be paid as set out above. Upon resolution of the disputed portion, any amounts owed to Byte9 will be paid by the Customer.
13.4 Byte9 will be entitled to charge interest on any overdue payment at the rate of 4% over base rate of the Barclays Bank from time to time.
13.5 Byte9 will invoice and be paid in GBP Sterling.
14. Intellectual Property Rights and Licence
14.1 All IPRs in the Software (including any adaptations or modifications of the Software created by or on behalf of the Customer) and the product of any of the Services will immediately on their creation vest in Byte9. To the extent that any such IPRs vest in the Customer, the Customer assigns, and by way of future assignment will assign, such IPRs to Byte9 with full title guarantee. The Customer will at Byte9’s cost immediately take any action or do any thing (including executing documents) necessary to perfect the assignment in this clause 14.1.
14.2 All IPRs in the Customer Materials will immediately on their creation vest in the Customer. To the extent that any such IPRs vest in Byte9, Byte9 assigns, and by way of future assignment will assign, such IPRs to the Customer with full title guarantee. Byte9 will at the Customer’s cost immediately take any action or do any thing (including executing documents) necessary to perfect the assignment in this clause 14.2.
14.3 Subject to clause 14.5, on Acceptance of the relevant Software Byte9 grants to the Customer a worldwide, perpetual, irrevocable, non-exclusive, royalty-free licence:
14.3.1 to use the Software; or
14.3.2 subject to clause 14.4.2, to grant to end users a sub-licence to use the Software for their own personal use.
14.4 In relation to the scope of use:
14.4.1 for the purposes of clause 14.3 above, “use” of the Software by the Customer is restricted to use of the Software for the Customer’s normal business purposes but includes any act which is reasonably incidental to such use.
14.4.2 any sub-licence granted to end users under clause 14.3.2 will not be capable of further sub-licence and will restrict the end users’ right to use the Software to such right as is necessary for their personal use.
14.4.3 save as set out at clause 14.3, the Customer will have no right to copy, adapt, reverse engineer, decompile, disassemble or modify the Software in whole or in part except as permitted by Section 50B of the Copyright, Designs and Patents Act 1988.
14.4.4 The Customer will not:
(a) commercialise, exploit, sell, licence, assign, transfer or rent the Software or any part of it, nor will the Customer offer the Software or any of its functionality as a service
(b) allow the Software to become the subject of any charge, lien or encumbrance; or
(c) deal in any other manner with any or all of its rights and obligations under this agreement
14.5 The Customer acknowledges that the some parts of the Operating Environment will form part of the Software. Ownership of the Operating Environment will remain vested in its proprietor. The Operating Environment may only be used by the Customer on the terms of the licence granted by the proprietor of Operating Environment (as applicable).
14.6 The Customer grants to Byte9 a worldwide, perpetual, irrevocable, non-exclusive, royalty-free licence to use the Customer Materials for the purposes of fulfilling its obligations under this Agreement.
14.7 After the Effective Date, Byte9 and the Customer shall enter into a three-party source code escrow agreement “Escrow Agreement” in the agreed form (incorporating such amendments as NCC Escrow International Limited (“NCC”) may reasonably request) with the Customer and NCC in respect of the Software.
15.1 Byte9 will defend the Customer, its officers, directors and employees against any claim that the Customer's use of the Software of the Byte9 Trade Mark infringes any Intellectual Property Rights (excluding patents) (a “Byte9 Claim”) and will indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of the Byte9 Claim or otherwise reasonably incurred by the Customer in connection with a Byte9 Claim.
15.2 The Customer will defend Byte9, its officers, directors and employees against any claim that the Byte9’s use of the Customer Materials infringes any Intellectual Property Rights (a “Customer Claim” and together with a Customer Claim, a “Claim”) and will indemnify the Customer for any amounts awarded against Byte9 in judgment or settlement of the Customer Claim or otherwise reasonably incurred by Byte9 in connection with a Customer Claim.
15.3 The above indemnities are given subject to:
15.3.1 the indemnified party given the indemnifying party prompt notice of any Claim or potential Claim;
15.3.2 the indemnifying party being given sole authority to defend or settle the Claim; and
15.3.3 the indemnified party providing reasonable co-operation to the indemnifying party in the defence and settlement of such Claim, at the indemnifying party’s expense.
15.4 In the defence or settlement of a Byte9 Claim, Byte9 may obtain for the 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 this Agreement without liability to the Customer.
15.5 Byte9 will have no liability if the alleged infringement is based on:
15.5.1 a modification of the Software by person other than Byte9;
15.5.2 the Customer’s use of the Software in breach of this Agreement or in a manner contrary to the instructions given to the Customer by Byte9; or
15.5.3 the Customer’s use of the Software after becoming aware of any potential Claim.
15.6 The provisions of this clause 15 are the Customer’s sole and exclusive rights and remedies, and Byte9’s entire obligations and liability, for Intellectual Property Rights infringement.
16.1 In this clause, “Confidential Information” means the Software, the Documentation, the Customer Materials and any other information that is clearly labelled or identified as confidential or that ought reasonably be treated as being confidential. Confidential Information excludes any information which:
16.1.1 is or becomes publicly known other than through a breach of this Agreement;
16.1.2 was in the receiving party’s lawful possession before the disclosure;
16.1.3 is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
16.1.4 is independently developed by the receiving party and that independent development can be shown by written evidence; or
16.1.5 is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
16.2 Each party will hold the other’s Confidential Information in confidence and 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 this Agreement.
16.3 Each party will 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, agents or independent contractors in breach of the terms of this Agreement.
16.4 This clause 16 will survive termination of this Agreement for a period of 5 years.
17.1 Byte9 may refer to its provision of services to the Customer under this Agreement in press, articles, awards and other media, subject to the Customer’s prior written approval as to the form, content and timing of all such references (such approval not to be unreasonably withheld or delayed).
18. Data Protection
18.1 If Byte9 processes any personal data on the Customer’s behalf under this Agreement, it is intended that the Customer will be the data controller and Byte9 will be a data processor.
18.2 If the Customer provides any personal data to Byte9, the Customer will ensure that it is entitled to do so and that Byte9 may lawfully process that personal data on the Customer’s behalf, as envisaged under this Agreement;
18.3 Byte9 will take appropriate technical and organisational measures against unauthorised or unlawful processing of any personal data provided by the Customer, or any accidental loss, destruction or damage of such data.
18.4 Byte9 will:
18.4.1 process any personal data provided by the Customer only in accordance with the terms of this Agreement and any lawful instructions reasonably given by the Customer from time to time;
18.4.2 not transfer any personal data provided by the Customer outside the European Economic Area without the prior written consent of the Customer;
18.4.3 promptly inform the Customer if any personal data provided by the Customer is lost or destroyed or becomes damaged, corrupted, or unusable;
18.4.4 notify the Customer within 3 Working Days if it receives a request from a data subject for access to that data subject's personal data and provide the Customer with all reasonable co-operation and assistance in relation to any such request; and
18.4.5 notify the Customer immediately if it becomes aware of any unauthorised or unlawful processing of any personal data provided by the Customer.
19.1 Each of the parties warrants that:
19.1.1 it has the requisite power and authority to enter into this Agreement and to perform fully its obligations under this Agreement;
19.1.2 it has not entered into and will not enter into any arrangement which would restrict or inhibit the exercise by the other party of its rights under this Agreement; and
19.1.3 it will fulfil its obligations under this agreement in accordance with all applicable laws, regulations and codes of practice.
19.2 Byte9 warrants that:
19.2.1 it will supply the Software and the Services with reasonable skill and care;
19.2.2 it will use reasonable skill and care in estimating the Story Points attributable to any Story and use reasonable endeavours to ensure that all estimated Story Points are consistent and accurate in accordance with good industry practice;
19.2.3 the Core Stories will provide the functionality described in the respective part of the Development Schedule within the Operating Environment for a period of 30 days from its Acceptance;
19.2.4 each of the Stories will provide the functionality described in the Core Stories within the Operating Environment for a period of 30 days from its Acceptance;
19.2.5 it will engage adequate numbers of Byte9 Personnel and that such Byte9 Personnel will:
(a) have the necessary skills and expertise to develop the Software;
(b) perform the Services at a standard generally observed in the industry for similar services;
19.2.6 the Software will be compatible with the Customer’s existing computer systems (to the extent such systems are notified to Byte9), without material modification, loss of use or performance;
19.2.7 so far as Byte9 is aware, the Software will be free from all Malware; and
19.2.8 the Documentation will be accurate and sufficiently detailed to enable a reasonably skilled operator of software to operate the Software.
19.3 Except as expressly stated in this Agreement, Byte9 does not give any warranty in respect of the Software or the Services and all warranties, whether express or implied, are excluded to the fullest extent permitted by law.
19.4 The Software and Services are provided "as is" to the fullest extent permissible pursuant to applicable law. Save as set out in this Agreement, Byte9 disclaims all warranties express or implied, including, but not limited to, implied warranties of satisfactory quality and fitness for a particular purpose, in relation to the Software and Services, their use and the results of such use. Byte9 specifically disclaims any warranty:
19.4.1 that the Software and Services will be uninterrupted or error-free;
19.4.2 that defects will be corrected;
19.4.3 that there are no viruses or other harmful components;
19.4.4 that the security methods employed will be sufficient; and
19.4.5 regarding correctness, accuracy, or reliability.
20. Warranty Period
20.1.1 the Core Stories fail to materially conform with the respective part of the Development Schedule; or
20.1.2 Any Story fails to materially conform with its respective part of the Development Schedule;
(in each case a “Defect”) the Customer will notify Byte9 in writing, providing reasonable detail of the Defect. Byte9 will use its reasonable endeavours to correct any Defects which are notified to it, provided that such notice is served within 30 days of the respective date of Acceptance.
20.2 Byte9 will have no obligation to correct Defects which are caused by:
20.2.1 any modification of the Software not made by Byte9;
20.2.2 the Customer’s use of the Software in breach of this Agreement or in a manner contrary to the instructions given to the Customer by Byte9;
20.2.3 use of the Software with other software or hardware which is incompatible or inadequate, as determined by Byte9 in its sole discretion; or
20.2.4 the Customer’s failure to provide hosting arrangements in accordance with clause 4.
20.3 The provision of the clauses 20.1 and 20.2 will be the Customer's only remedy for Defects.
21. Limitation of Liability
21.1 This clause 21 sets out Byte9's entire financial liability (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer:
21.1.1 arising under or in connection with this Agreement;
21.1.2 in respect of any use made by the Customer of the Software or Services or any part of them; and
21.1.3 in respect of any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.
21.2 Nothing in this Agreement excludes the liability of Byte9:
21.2.1 for death or personal injury caused by Byte9’s negligence;
21.2.2 for fraud or fraudulent misrepresentation; or
21.2.3 any statutory liability not capable of limitation.
21.3 Except as expressly and specifically provided in this Agreement, the Customer assumes sole responsibility for its use of the Software or Services, and for the results of such use. Byte9 will have no liability for any damage caused by:
21.3.1 errors or omissions in any information or instructions provided to Byte9 by the Customer; or
21.3.2 any actions taken by Byte9 at the Customer’s direction.
21.4 Subject to clause 21.2, Byte9 will not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation (whether innocent or negligent), restitution or otherwise for:
21.4.1 any loss of profits, loss of data or information, loss of business, loss of anticipated savings, depletion of goodwill and/or similar losses, or pure economic loss, or for any special, indirect or consequential loss costs, damages, charges or expenses however arising under this Agreement (even if such loss was reasonably foreseeable or if Byte9 had been advised of the possibility of such loss arising);
21.4.2 any losses which are not notified to Byte9 within 1 year of the date on which the events giving rise to the losses occurred; or
21.4.3 any losses which are caused by:
(a) any modification of the Software not made by Byte9;
(b) the Customer’s use of the Software in breach of this Agreement or in a manner contrary to the instructions given to the Customer by Byte9;
(c) use of the Software with other software or hardware (including in respect of software hosting services) which is incompatible or inadequate, as determined by Byte9 in its sole discretion;
(d) the Customer’s failure to provide hosting arrangements, website domain registrations and any certifications in accordance with clause 4; or
(e) any content provided or generated by any user of the Software.
Subject to clause 21.2, Byte9’s total aggregate liability in contract (including in respect of the indemnity at clause 15), 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 this Agreement will be limited to the total monies actually received by Byte9 from the Customer under this Agreement during the 12 months preceding the date on which the claim arose.
22.1 This Agreement will commence on Effective Date and continue until the terminated in accordance with this clause 22 .
22.2 On the expiry of the Initial Application Support Period, this Agreement will be automatically extended by consecutive Extended Application Support Periods unless earlier terminated by either party in accordance with clause 22.6 or clause 22.7.
22.3 On the expiry of the Initial Retainer Period, this Agreement will be automatically extended by consecutive Extended Retainer Periods unless earlier terminated by either party in accordance with clause 22.6 or clause 22.7.
22.4 Without prejudice to either party’s other rights or remedies, either party may terminate the Application Support Services for any reason on 90 days written notice to the other party, such notice not to expire prior to the end of the Initial Application Support Period or any Extended Application Support Period then in effect.
22.5 Without prejudice to either party’s other rights or remedies, either party may terminate the Retained Development Services for any reason on 90 days written notice to the other party, such notice not to expire prior to the end of the Initial Retainer Period or any Extended Retainer Periods then in effect.
22.6 Without prejudice to either party’s other rights or remedies, either party may terminate this Agreement for any reason on 90 days written notice to the other party, such notice not to expire prior to the end of later of any Initial Application Support Period, Initial Retainer Period, or any Extended Application Support Period or Extended Retainer Period then in effect.
22.7 Without prejudice to either party’s other rights or remedies, this Agreement can be terminated by:
22.7.1 either party immediately on written notice if the other party:
(a) commits a material breach of any of the terms of this Agreement and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or
(b) ceases trading (or threatens to cease trading); is subject to an order for winding up; has an administrator or liquidator appointed (or such appointment is entitled or is requested in good faith); becomes insolvent; is incapable of paying its debts as they fall due; makes any arrangement with its creditors for the payment of its debts;
22.7.2 by Byte9 immediately on written notice if the Customer fails to pay any invoice within 14 days of its due date.
22.8 On termination of this Agreement for any reason:
22.8.1 other than Byte9’s material breach, all outstanding Fees shall become immediately due and payable;
22.8.2 each party will return any property (and any copies) belonging to the other party; and
22.8.3 at the Customer’s request Byte9 will return or destroy of any Customer Material it possesses.
22.9 The accrued rights and remedies of the parties, and clause intended to survive termination will survive termination of this Agreement for any reason.
23.1 Any notice required to be given under this Agreement will be in writing and will be:
23.1.1 delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its notice address set out on the Engagement Letter (or such other address as may have been notified); or
23.1.2 sent by email to the other party’s notice email address set out on the Engagement Letter.
23.2 A notice delivered by hand will be deemed to have been received when delivered (or if delivered outside Business Hours, at 9 am on the first Working Day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post will be deemed to have been received 2 Working Days after posting. A notice sent by email will be deemed to have been received on acknowledgement or demonstration of receipt by the receiving party.
24. Non Competition
24.1 During the term of this Agreement and for 12 months after its expiry or termination, the Customer will not:
24.1.1 solicit, or seek to solicit, any Byte9 Personnel; or
24.1.2 entice, or seek to entice, any staff of Byte9 Personnel to transfer their services away from Byte9.
24.2 For the purposes of clause 24.1, the terms “solicit” and “entice” do not include searches for employees though general recruitment efforts or that are not otherwise focused on persons employed by Byte9.
25. Entire Agreement
25.1 This Agreement constitutes the whole agreement between the parties and supersedes any previous agreement between them.
25.2 Each party acknowledges that, in entering into this Agreement, it has not relied and does not rely on any statement, representation (whether innocent or negligent), assurance or warranty (a “Representation”) of any person (whether a party to this Agreement or not) other than as expressly set out in this Agreement.
25.3 Each party agrees that the only rights and remedies available to it arising out of or in connection with a Representation will be for breach of contract.
25.4 Nothing in this clause will limit or exclude any liability for fraud.
26.1 Any dispute arising out of or in connection with this contract, including any question regarding its existence, validity or termination, will be referred to and finally resolved by arbitration under the rules of the London Court of International Arbitration, which are deemed to be incorporated by reference into this clause 26.
26.2 The number of arbitrators will be one. The seat, or legal place, of arbitration will be London. The language to be used in the arbitral proceedings will be English and the governing law of the contract will be the substantive law of England and Wales.
27.1 No party will be in breach of this Agreement nor liable for any failure to perform its obligations under this Agreement if that failure results from circumstances beyond its reasonable control (a “Force Majeure Event”). If a Force Majeure Event continues for six months, the unaffected party may terminate this Agreement by giving 30 days’ written notice to the other party.
27.2 Byte9 may assign the benefit and subcontract the burden of this Agreement. The Customer may not assign the benefit or subcontract the burden of this Agreement without Byte9’s consent (not be withheld or delayed).
27.3 No variation of this Agreement will be effective unless it is in writing or as set out in the Engagement Letter.
27.4 If any provision (or part of a provision) of this Agreement is found to be invalid, unenforceable or illegal, the other provisions (or parts of any provisions) will remain in force.
27.5 A waiver of any right under this Agreement is only effective if it is in writing. Unless specifically provided otherwise, rights arising under this Agreement are cumulative and do not exclude rights provided by law.
27.6 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
27.7 Nothing in this Agreement will be deemed to establish any partnership or joint venture between the parties, constitute a party the agent of the other party, nor authorise a party to make or enter into any commitments for or on behalf of the other party.
27.8 This Agreement may be signed in any number of counterparts but all counterparts will together constitute the same agreement.
APPLICATION SUPPORT SCHEDULE
1.1 The following definitions apply to this Application Support Schedule and any other defined terms shall have the meaning given to them elsewhere in the Agreement:
any amendments that are required to be made to the Software in order to resolve an Error and to ensure that the Software performs substantially in accordance with the Documentation and/or the Story.
an update to the Software which is essential to the use of the Software or as required under the terms of this Agreement.
any computer equipment on which the Software is installed and in operational use either in a test or production environment.
any failure of the Software to perform in accordance with the Documentation and/or the Story.
“High Priority Fatal Error”
an issue which means a critical business function cannot be used causing potential revenue loss to the Customer, or which causes the Customer to breach any obligations they might have to customers as to service availability.
“Initial Response Time”
the period during the hours of 9.30 to 18.00 on a Working Day within which Byte9 will acknowledge receipt of an Issue Notification starting from the time Byte9 receives the Issue Notification from the Customer.
“Interim Report Period”
the period during the hours of 9.30 to 18.00 on a Working Day within which Byte9 will assign the Issue Notification a support issue reference and inform the Customer of the Corrective Maintenance to be undertaken. The Interim Report Period is measured from the time Byte9 receives the Issue Notification from the Customer.
“Low Priority Minor Error”
issues which cause an inability to perform a function properly but which have only a minor impact on the Customer’s ability to perform core business processes.
“Medium Priority Serious Error”
an issue which means that a business function cannot be used until the error is corrected but for which there are workarounds in place to avoid direct loss of revenue to the Customer.
2. Customer Contact
2.1The Customer shall notify Byte9 of any Errors with the Software (each such notification, a “Issue Notification”) using the reporting platform Jira (available at https://byte-9.atlassian.net/). Requests for Application Support Services made by any means other than Jira shall not be valid
3. Corrective Maintenance
3.1 Byte9 shall respond to an Issue Notification in accordance with the response times set out in clause 3.3 and perform Corrective Maintenance as required to resolve the Error.
3.2 Response times to an Issue Notification shall be as follows:
Initial Response Time: 4 hours
Interim Report Period: 8 hours
Initial Response Time: 4 hours
Interim Report Period: 28 hours
Initial Response Time: 4 hours
Interim Report Period: 52 hours
3.3 Byte9 shall provide reasonable email and phone consultation to the Customer if the Errors fall within the scope of Corrective Maintenance.
4. Software Service Levels
4.1 Byte9 will use all reasonable endeavours to enable 99.9% availability of the Software. Performance is measured as a monthly average in arrears from the Effective Date and each month thereafter.
4.2 Calculation of availability shall not extend to:
4.2.1 any scheduled outage of which the Byte9 has informed the Customer of in advance in writing;
4.2.2 any failure of any third party products or services including Hosting Services;
4.2.3 equipment defects or repairs to or the supply of consumable items such as discs or tapes other than those supplied by Byte9;
4.2.4 modifications or additions to the servers, system set-up or network other than agreed in writing by between the parties; or
4.2.5 breaches of security or system integrity due to modification by a 3rd party unless agreed in writing by the parties.
5.1 Byte9 shall without additional charge to the Customer:
5.1.1 supply and install Critical Updates issued generally by Byte9 to users of the Software after the Effective Date;
5.1.2 supply and install or Critical Updates as may be necessary to ensure that the Software operates to reflect any change in any applicable regulation, statute, law, code of conduct or necessary market practice which relates to the business of the Customer and which may be relevant from time to time;
5.1.3 supply physical documentation to the Customer detailing all changes that are contained within the Critical Updates;
5.1.4 supply and install, in consultation with the Customer, Critical Update or patch issued by a third party software provider (such as an anti-virus software provider), or as otherwise necessary for the proper operation of the Software and website in accordance with the Documentation and/or the Story.; and
5.1.5 provide unlimited phone consultation to the Customer in respect of Critical Updates.
5.2 The Customer shall test and use any Critical Updates within a timely period.
6. Excluded ApplicationSupport Services
6.1 Byte9 shall be under no obligation to provide Application Support Services in respect of:
6.1.1 problems resulting from any modifications or customisation of the Software not approved in writing by Byte9;
6.1.2 any software other than the Software provided by Byte9 to the Customer under this Agreement;
6.1.3 breaches of security or system integrity due to modification of the Software by a third party unless approved in writing by Byte9;
6.1.4 any incorrect or unauthorised use of the Software, being a use not in accordance with the Documentation and/or the Story;
6.1.5 any fault in the Equipment;
6.1.6 any failure of any third party products or services or integrations with any such products or services unless this is due to a change implemented by Byte9;
6.1.7 any programs used in conjunction with the Software;
Byte9 shall, in its own name, procure Hosting Services from Amazon Web Services, Inc. ("Amazon") for the hosting of the Software. Such services shall be procured on the basis of Amazon’s standard terms of business from time to time. Amazon’s current standard terms of business can be found here:
(the “Amazon Agreement”)
Byte9 shall only be liable for the provision of Hosting Services to the Customer under this Agreement to the extent it itself receives such services from Amazon under the Amazon Agreement and to the extent Amazon accepts liability for the provision of such services under the Amazon Agreement.
The Customer agrees to comply with any terms or obligations applicable to end users of the Hosting Services as may be set out in the Amazon Agreement.
Operating Envionment Schedule
- Operating system: Unix: latest 64-bit Freebsd available
- Database: latest 64-bit mysql server
- Web server: 64-bit version of latest Apache build
- Server-side scripting language: 64-bit version of latest PHP's production version
Browser Operating Environment Schedule
- OS / Browser combinations tested:
- Mac: Chrome; Firefox; Safari; Opera
- Windows: Chrome; Edge; Firefox; Opera