RepKnight Services Agreement

This legal agreement between the Customer and RepKnight Limited governs RepKnight’s provision of, and the Customer’s use of, the RepKnight Services.

1.           Interpretation

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

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

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

Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 10.5.

Customer: the RepKnight customer named in the Order Form.

Data Allowance: the number of Data Units per month included in the Data Allowance Charge as set out in the Order Form.

Data Allowance Charges: the charges payable for the Data Allowance as set out on the Order Form.

Data Unit: a single data record being a single tweet, comment on a post, an entire blog post, or single post document.

Documentation: the document made available to the Customer by the Supplier online via www.repknight.com or such other web address notified by the Supplier to the Customer from time to time which sets out a description of the Services and the user instructions for the Services.

Effective Date: the date of the Order Form pursuant to which the Customer orders Services.

Excess Data: the number of Data Units provided to the Customer in excess of the Data Allowance.

Excess Data Charge: the charges payable for Excess Data calculated by multiplying the Excess Data Rate by the Excess Data.

Excess Data Rate: the charge for Excess Data as set out in the Order Form.

Initial Term: the initial term of this agreement as set out in the Order Form.

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

Order Form: the order form setting out the Services ordered by the Customer.

Renewal Period: the period described in clause 13.1.

SaaS Services: the subscription services provided by RepKnight to the Customer under this agreement via the RepKnight portal or any other website notified to the Customer by RepKnight from time to time, as more particularly described in the Order Form.

Search Term: a single boolean expression created within the RepKnight application, consisting of one or more lists of user-defined keywords.

Search Term Charges: the initial charge relating to (i) the number of Search Terms, as set out in the Order Form, and (ii) any additional Search Terms added during the term of the Agreement

Search Term Limit: the maximum number of Search Terms permitted in the RepKnight Services as set out in the Order Form.

Services: (i) the SaaS Services and (ii) the Training Services

SLA: the service level agreement set out in the Schedule.

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

Subscription Charges : the amount payable for access to the RepKnight Services, including User License Charges, Search Term Charges, Data Allowance Charges, and Excess Data Charges including any additions made during the term of the agreement.

Term: has the meaning given in clause 13.1 (being the Initial Term together with any subsequent Renewal Periods).

Training Charges: the charges payable for the Training Services as set out on the Order Form.

Training Services: training services provided by RepKnight to the Customer under this agreement, as more particularly described in the Order Form.

Tax: any tax, levy, impost, duty, charge or fee.

Twitter Content: “Twitter Content” means Tweets, Tweet IDs, Twitter end user profile information, and any other content of Twitter made available to Customer through the RepKnight platform, and any copies and derivative works thereof.

Usage Policy: RepKnight’s current usage policy relating to the Customer’s use of the Services which is published online at www.repknight.com/usage-policy, containing additional terms and conditions imposed or modified by RepKnight’s data feed providers during the term of this agreement.

User License: a single-user login permitting an Authorised User to access the RepKnight Service.

User License Charges: the initial charge relating to (i) the number of User Licenses, as set out in the Order Form, and (ii) any additional User Licenses added during the term of the Agreement

User License Limit: the maximum number of User Licenses licensed to access the RepKnight Services as set out in the Order Form.

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 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) and that person’s legal and personal representatives, successors or permitted assigns.

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 are to the clauses of this agreement.

2.           Data Plan

2.1        Subject to the Customer purchasing the SaaS Services and paying the Subscription Charges in accordance with clause 8.1 and the other terms and conditions of this agreement, RepKnight hereby grants to the Customer a non-exclusive, non-transferable right to permit the Authorised Users to use the SaaS Services and Documentation during the Term solely for the Customer’s internal business operations.

2.2        The SaaS Services may only be accessed by a limited number of Authorised Users, defined by the User License Limit.  If the Customer requires an increase to the User License Limit, additional User Licenses must be purchased from RepKnight.

2.3        Each User License must be associated with a unique, valid email address accessible by the Customer.  Each User License supports only one concurrent session login.

2.4        Authorised Users can create Search Terms in the RepKnight platform, provided that the total number of active searches created by all Authorised Users is within the Search Term Limit.  If the Customer requires an increase to the Search Term Limit, additional Search Term licenses must be purchased from RepKnight.

2.5        The Data Allowance expires at the end of each month and unused allowances do not roll over into the following months.  Excess Data will be charged at the Excess Data Rate.

2.6        The Customer is responsible for ensuring users of the Service have the requisite knowledge and training to request only the data that they require.  Mistakes which cause large volumes of data to be delivered are the responsibility of the Customer and will be charged as Excess Data if the Data Allowance is exceeded.

2.7        The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the SaaS 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)          in a manner that is otherwise illegal or causes damage or injury to any person or property;

and RepKnight reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer’s access to any material that breaches the provisions of this clause.

2.8        The Customer shall not:

(a)          except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:

(i)          and except to the extent expressly permitted under this agreement, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software in any form or media or by any means; or

(ii)         attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or

(b)         access all or any part of the SaaS Services in order to build a product or service which competes with the SaaS Services; or

(c)          without prior written consent from RepKnight use the SaaS Services to provide services to third parties; or

(d)         subject to clause 20.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the SaaS Services available to any third party, or

(e)          attempt to obtain, or assist third parties in obtaining, access to the SaaS Services, other than as provided under this clause 2; and

2.9        The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the SaaS Services and, in the event of any such unauthorised access or use, promptly notify RepKnight.

2.10      The rights provided under this clause 2 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer.

3.           Additional Data Bundles, User Licenses and Search Terms

3.1        Subject to clause 3.2 and clause 3.3, the Customer may, from time to time during the Term, purchase additional bundles which increase the Data Allowance, User License Limit or Search Term Limit in accordance with the provisions of this agreement.

3.2        If the Customer wishes to purchase additional bundles, the Customer shall notify RepKnight in writing. RepKnight shall evaluate such request for additional bundles and respond to the Customer with approval or rejection of the request (such approval not to be unreasonably withheld).

3.3        If RepKnight approves the Customer’s request to purchase additional bundles, the Customer shall, within 30 days of the date of RepKnight’s invoice, pay to RepKnight the relevant fees for such additional bundles as set out in the Order Form.

4.           Services

4.1        RepKnight shall, during the Term, provide the Services to the Customer on and subject to the terms of this agreement.

4.2        RepKnight shall use commercially reasonable endeavours to make the SaaS Services available in accordance with the SLA except for unscheduled maintenance performed outside Normal Business Hours, provided that RepKnight has used reasonable endeavours to give the Customer at least 6 Normal Business Hours’ notice in advance.

4.3        RepKnight will, as part of the SaaS Services and at no additional cost to the Customer, provide the Customer with RepKnight’s standard customer support services in accordance with the SLA.

4.4        For Training Services, the Customer shall:

(a)          provide RepKnight, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, office accommodation and other facilities as reasonably required by RepKnight to provide the Training Services; and

(b)         provide RepKnight with such information, materials and internet access as RepKnight may reasonably require to supply the Training Services, and ensure that such information is accurate in all material respects.

4.5        If RepKnight’s performance of any of its obligations in respect of the Training Services is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):

(a)          RepKnight shall without limiting its other rights or remedies have the right to suspend performance of the Training Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays RepKnight’s performance of any of its obligations;

(b)         RepKnight shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from RepKnight’s failure or delay to perform any of its obligations as set out in this clause 4.5; and

(c)          the Customer shall reimburse RepKnight on written demand for any costs or losses sustained or incurred by RepKnight arising directly or indirectly from the Customer Default.

5.           Third party providers

The Customer acknowledges that the Services may enable or assist it to access the website content of third parties via third-party websites and that it does so solely at its own risk.  RepKnight makes no representation or commitment and shall have no liability or obligation whatsoever in relation to the content or use of any such third-party website. RepKnight recommends that the Customer refers to the third party’s website terms and conditions and privacy policy prior to using the relevant third-party website.  RepKnight does not endorse or approve any third-party website nor the content of any of the third-party website made available via the Services.

6.           RepKnight’s obligations

6.1        RepKnight undertakes that the Services will be performed with reasonable skill and care.

6.2        The undertaking at clause 6.1 shall not apply to the extent of any non-conformance which is caused by use of the SaaS Services contrary to RepKnight’s instructions, or modification or alteration of the SaaS Services by any party other than RepKnight or RepKnight’s duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, RepKnight will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking set out in clause 6.1.  Notwithstanding the foregoing, RepKnight:

(a)          does not warrant that the Customer’s use of the SaaS Services will be uninterrupted or error-free; or that the SaaS Services and/or the information obtained by the Customer through the SaaS Services will meet the 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 the Customer acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

6.3        This agreement shall not prevent RepKnight from entering into similar agreements with third parties, or from independently developing, using, selling or licensing services which are similar to those provided under this agreement.

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

7.           Customer’s obligations

7.1        The Customer shall:

(a)          provide RepKnight with:

(i)          all necessary co-operation in relation to this agreement; and

(ii)         all necessary access to such information as may be required by RepKnight;

in order to provide the Services, including but not limited to security access information and configuration services;

(b)         comply with all applicable laws and regulations with respect to its activities under this agreement;

(c)          carry out all other Customer responsibilities set out in this agreement in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the parties, RepKnight may adjust any agreed timetable or delivery schedule as reasonably necessary;

(d)         ensure that the Customer shall use the Services in accordance with the terms and conditions of this agreement and shall be responsible for any authorised user’s breach of this agreement;

(e)          obtain and shall maintain all necessary licences, consents, and permissions necessary for RepKnight, its contractors and agents to perform their obligations under this agreement, including without limitation the Services;

(f)          ensure that its network and systems comply with the relevant specifications provided by RepKnight from time to time; and

(g)         be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to RepKnight’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet.

7.2        The Customer shall comply with the following additional terms imposed by Twitter, in relation to data derived from Twitter feeds within the RepKnight platform:

(a)          Customer will not conduct analyses or research that isolates a small group of individuals or any single individual for any unlawful or discriminatory purposes.

(b)         comply with the Twitter Terms of Service located at http://twitter.com/tos (“Twitter TOS”). The Customer will actively monitor and enforce each end user’s compliance with Twitter TOS, notifying RepKnight of all noncompliance.

(c)          Customer will not use Twitter Content in any manner that would have the potential to be inconsistent with Twitter’s users’ reasonable expectations of privacy.

(d)         Twitter Content, and information derived from Twitter Content, may not be used for tracking, alerting, monitoring, or other uses that relate to individuals, topics, or events that are political in nature or are affiliated with political groups (e.g. protests, rallies, community organizing meetings, etc).

(e)          Twitter Content, and information derived from Twitter Content, may not be used for investigative purposes, or as part of an ongoing criminal investigation

(f)          Twitter Content, and information derived from Twitter Content, may not be used for analyses focused on suspected terrorist or extremist organizations.

(g)         Customer will not (and will not permit others to) use Twitter Content to target, segment, or profile any individual user, based on health, negative financial status or condition, political affiliation or beliefs, racial or ethnic origin, religious or philosophical affiliation or beliefs, sex life or sexual orientation, trade union membership, data relating to any alleged or actual commission of a crime, or any other sensitive categories of personal information prohibited by law.

7.3        The Customer understands and accepts that RepKnight is obliged to comply with all terms and conditions imposed by its data feed suppliers as set out in RepKnight’s online Usage Policy, and that these may change during the term of this Agreement. RepKnight shall endeavour to provide Customer with 30 days notice of changes to Usage Policy, and Customer shall have the option of:

(a)          accepting the updated Usage Policy, which shall become incorporated by reference into this agreement;

(b)         requesting that RepKnight remove that data feed from the Customer’s instance of the RepKnight Services.

7.4        In the event that Customer does not respond to a notification of change to the Usage Policy as set out in clause 7.3, RepKnight may at its option suspend or remove that data feed from the RepKnight Services.

8.           Charges and payment

8.1        The Customer shall pay the Training Charges, Subscription Charges and any Excess Data Charges to RepKnight in accordance with this clause 8 and the Order Form.

8.2        The Customer shall on the Effective Date provide to RepKnight valid, up-to-date and complete credit card details or approved purchase order information acceptable to RepKnight and any other relevant valid, up-to-date and complete contact and billing details and, if the Customer provides:

(a)          its credit card details to RepKnight, the Customer hereby authorises RepKnight to bill such credit card:

(i)          on the Effective Date for the Subscription Charges payable in respect of the Initial Term;

(ii)         monthly in arrears for the Excess Data Charges;

(iii)       in the month of supply of Training Product for the Training Charges; and

(iv)        subject to clause 13.1, on the expiry of the Initial Term and any subsequent Renewal Period for the Subscription Charges payable in respect of the next Renewal Period;

(b)         its approved purchase order information to RepKnight, RepKnight shall invoice the Customer:

(i)          on the Effective Date for the Subscription Charges payable in respect of the Initial Term;

(ii)         monthly in arrears for the Excess Data Charges;

(iii)       in the month of supply of Training Product for the Training Charges; and

(iv)        subject to clause 13.1, at least 30 days prior to the expiry of the Initial Term and any subsequent Renewal Period for the Subscription Charges payable in respect of the next Renewal Period,

and the Customer shall pay each invoice within 30 days after the date of such invoice.

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

(a)          RepKnight may, without liability to the Customer, disable the Customer’s password, account and access to all or part of the Services and RepKnight shall be under no obligation to provide any or all of the 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 4% over the then current base lending rate of HSBC Bank from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.

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

(a)          shall be payable in the currency stated on the Order Form;

(b)         are, subject to clause 12.4(b), non-cancellable and non-refundable;

(c)          are exclusive of value added tax, which shall be added to RepKnight’s invoice(s) at the appropriate rate.

8.5        RepKnight shall be entitled to increase the Subscription Charges and the Excess Data Rate at the start of each Renewal Period upon 90 days’ prior notice to the Customer and the Order Form shall be deemed to have been amended accordingly.

8.6        The Customer shall make all payments under this agreement without withholding or deduction of, or in respect of, any Tax unless required by law. If any such withholding or deduction is required, the Customer shall, when making the payment to which the withholding or deduction relates, pay to RepKnight such additional amount as will ensure that RepKnight receives the same total amount that it would have received if no such withholding or deduction had been required.

9.           Proprietary rights

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

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

10.        Confidentiality

10.1      Each party may be given access to Confidential Information from the other party in order to perform its obligations under this agreement.  A party’s Confidential Information shall not be deemed to include information that:

(a)          is or becomes publicly known other than through any act or omission of the receiving party;

(b)         was in the other party’s lawful possession before the disclosure;

(c)          is lawfully disclosed to the receiving party by a third party without restriction on disclosure;

(d)         is independently developed by the receiving party, which independent development can be shown by written evidence; or

(e)          is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.

10.2      Each party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of this agreement.

10.3      Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this agreement.

10.4      Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.

10.5      The Customer acknowledges that details of the Services, and the results of any performance tests of the Services, constitute RepKnight’s Confidential Information.

10.6      This clause 10 shall survive termination of this agreement, however arising.

10.7      No party shall make, or permit any person to make, any public announcement concerning this agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.

11.        Indemnity

11.1      The Customer shall defend, indemnify and hold harmless RepKnight against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer’s use of the Services, provided that:

(a)          the Customer is given prompt notice of any such claim;

(b)         RepKnight provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer’s expense; and

(c)          the Customer is given sole authority to defend or settle the claim.

11.2      RepKnight shall defend the Customer, its officers, directors and employees against any claim that the Services infringes any United Kingdom patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:

(a)          RepKnight is given prompt notice of any such claim;

(b)         the Customer provides reasonable co-operation to RepKnight in the defence and settlement of such claim, at RepKnight’s expense; and

(c)          RepKnight is given sole authority to defend or settle the claim.

11.3      In the defence or settlement of any claim, RepKnight may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this agreement on 20 Business Days’ notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.

11.4      In no event shall RepKnight, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:

(a)          a modification of the Services by anyone other than RepKnight; or

(b)         the Customer’s use of the Services in a manner contrary to the instructions given to the Customer by RepKnight; or

(c)          the Customer’s use of the Services after notice of the alleged or actual infringement from RepKnight or any appropriate authority.

11.5      The foregoing  and clause 12.4(b) states the Customer’s sole and exclusive rights and remedies, and RepKnight’s (including RepKnight’s employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.

12.        Limitation of liability

12.1      This clause 12 sets out the entire financial liability of RepKnight (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer:

(a)          arising under or in connection with this agreement;

(b)         in respect of any use made by the Customer of the Services or any part of them; and

(c)          in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with this agreement.

12.2      Except as expressly and specifically provided in this agreement:

(a)          the Customer assumes sole responsibility for results obtained from the use of the Services by the Customer, and for conclusions drawn from such use. RepKnight shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to RepKnight by the Customer in connection with the Services, or any actions taken by RepKnight at the 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 Services are provided to the Customer on an “as is” basis.

12.3      Nothing in this agreement excludes the liability of RepKnight:

(a)          for death or personal injury caused by RepKnight’s negligence; or

(b)         for fraud or fraudulent misrepresentation.

12.4      Subject to clause 12.2 and clause 12.3:

(a)          RepKnight 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)         RepKnight’s total aggregate liability in contract (including in respect of the indemnity at clause 11.2), 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 amount paid for the Services giving rise to the claim during the 12 months immediately preceding the date on which the claim arose.

13.        Term and termination

13.1      This agreement shall, unless otherwise terminated as provided in this clause 13, commence on the Effective Date and shall continue for the Initial Term and, thereafter, this agreement shall be automatically renewed for successive periods equal to the Initial Term (each a Renewal Period), unless:

(a)          either party notifies the other party of termination, in writing, at least 60 days before the end of the Initial Term or any Renewal Period, in which case this agreement shall terminate upon the expiry of the applicable Initial Term or Renewal Period; or

(b)         otherwise terminated in accordance with the provisions of this agreement;

and the Initial Term together with any subsequent Renewal Periods shall constitute the Term.

13.2      Without affecting any other right or remedy available to it, either party may terminate this 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 20 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 20 days after being notified in writing to do so;

(c)          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 ;

(d)         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;

(e)          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;

(f)          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;

(g)         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;

(h)         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;

(i)          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;

(j)          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 13.2(c) to clause 13.2(i) (inclusive); or

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

13.3      On termination of this agreement for any reason:

(a)          all licences granted under this agreement shall immediately terminate;

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

(c)          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.

14.        Force majeure

RepKnight shall have no liability to the Customer under this agreement if it is prevented from or delayed in performing its obligations under this agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of RepKnight or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Customer is notified of such an event and its expected duration.

15.        Variation

No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

16.        Waiver

No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

17.        Rights and remedies

Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

18.        Severance

18.1      If any provision (or part of a provision) of this agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.

18.2      If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.

19.        Entire agreement

19.1      This agreement, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.

19.2      Each of the parties acknowledges and agrees that in entering into this agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this agreement or not) relating to the subject matter of this agreement, other than as expressly set out in this agreement.

20.        Assignment

20.1      The Customer shall not, without the prior written consent of RepKnight, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.

20.2      RepKnight may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.

21.        No partnership or agency

Nothing in this agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

22.        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.

23.        Notices

23.1      Any notice required to be given under this agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in this agreement, or such other address as may have been notified by that party for such purposes, or sent by fax to the other party’s fax number as set out in this agreement.

23.2      A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by fax shall be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender).

24.        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.

25.        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 – Service Level Agreement (SLA)

Definitions

Incident: An unplanned interruption to or reduction in the quality or performance of the Service.

Response Time: The time taken to answer a call, return a call or respond to an initial email reporting an Incident.

Resolution Time:  The time taken to fix the root cause of an Incident.

Severity 1: The Service is (i) inoperative or (ii) is experiencing terminable/intermittent problems that renders it unusable.

Severity 2: The functionality of the Service is defective or contains a problem that renders the Service difficult, but not impossible to use.

Severity 3: The Customer experiences a non-critical degradation of performance, or experiences minor problems that need correction, in the Service.

Customer Responsibilities

The SLA is provided subject to the following requirements:

  • Payment for all SaaS Services at the agreed interval.
  • Reasonable availability of a Customer representative(s) when resolving an Incident.

Support

Support both by phone and email supplied by the following means:

  • For a Severity 1 Incident: Telephone support on a 24 hour, 365-day basis
  • For a Severity 2 or 3 Incident: Telephone or Email support: Normal Business Hours. Incident reports received outside of these hours will be collected, however no action can be guaranteed until the next Business Day.

 

Service Level Targets

 

Severity Initial Contact Medium Response Time Resolution Time Customer updates (email or phone)
1 Phone 1 hour 24 hours Every 4 hours
2 Phone / Email 4 Normal Business Hours 3 Business Days Once Every Business Day
3 Phone / Email 1 Business Day 10 Business Days Every 5 Business Days