Interactive-sms.co.uk Customer agreement
This agreement is made on the ‘Commencement Date’ between the following parties (each a ‘party’ and together the ‘parties’):
(1) Siteon Limited a company incorporated in England and Wales whose registered number is 03949180 and whose registered office is at Leofric House, Binley Road, Coventry CV1 1JN (Siteon); and
(2) The ‘Interactive-sms.co.uk Customer’.
A Siteon has developed certain software that it wishes to make available as a service to the Interactive-sms.co.uk Customer for the benefit of itself and its Users.
B The Interactive-sms.co.uk Customer and its Users will be able to benefit from the Software-as-a-Service (SaaS) and associated applications by interacting with it remotely through the Internet.
C Siteon wishes to provide the Interactive-sms.co.uk and associated SaaS Applications and the Interactive-sms.co.uk Customer agrees to pay for the Interactive-sms.co.uk and associated SaaS Applications on the terms of this Agreement.
1 Definitions and interpretation
|Affiliate||means in relation to a party, any other entity which directly or indirectly Controls, is Controlled by, or is under direct or indirect common Control with that party from time to time.|
|Applicable Law||means any and all applicable laws, statutes, orders, rules, treaties, decree, regulations, directives, edicts, bye-laws, schemes, warrants, other instruments made under or to be made under any statute, any exercises of the royal prerogative and codes of conduct and regulatory rules or guidelines, whether local, national, international or otherwise existing from time to time, together with any other similar instrument having legal effect in the relevant circumstances.|
|Business Day||means a day (other than a Saturday or Sunday or public holiday) on which banks are generally open in London for non-automated normal business.|
|Confidential Information||all information whether technical or commercial know-how (including all specifications, inventions, processes, initiatives, drawings and designs, disclosed in writing, on disc, orally or by inspection of documents or pursuant to discussions between the parties) given by one party to the other or otherwise obtained by one party relating to the other party’s business, finance or technology, know-how, Intellectual Property Rights, assets, strategy, products and customers, including information relating to management, financial, marketing, technical and other arrangements or operations of any Affiliate, person, firm, or organisation associated with that party where the information is: (a) identified as confidential at the time of disclosure; or (b) ought reasonably to be considered confidential given the nature of the information or the circumstances of disclosure.|
|Data Controller||means data controller as defined in the Data Protection Legislation.|
|Data Processor||means data processor as defined in the Data Protection Legislation.|
|Data Protection Legislation||means the Data Protection Act 1998 and the Privacy and Electronic Communications (EC Directive) Regulations 2003, as amended from time to time, and all other applicable privacy and data protection laws and regulations, as well as any guidance and/or codes of practice issued from time to time by the Information Commissioner.|
|Force Majeure||means an event or sequence of events beyond a party’s reasonable control (which could not reasonably have been anticipated and avoided by a party) preventing or delaying it from performing its obligations hereunder, including war, revolution, terrorism, riot or civil commotion, or precautions against any such; strikes, lock outs or other industrial action, whether of the affected party’s own employees or others; blockage or embargo; acts of or restrictions imposed by government or public authority; explosion, fire, corrosion, flood, natural disaster, or adverse weather conditions. Force Majeure does not include inability to pay, mechanical difficulties, shortage or increase of price of raw materials, over-commitment or market or other circumstances which may make the terms of this Agreement unattractive to a party.|
|Good Industry Practice||means the exercise of that degree of skill, care, prudence, efficiency, foresight and timeliness as would be expected from a leading company within the relevant industry or business sector.|
|Infringing Data||has the meaning set out in clause 8.|
|Intellectual Property Rights||means copyright, know-how, confidential information, rights in inventions, patents, know-how, trade secrets, trademarks and trade names, service marks, design rights, rights in get-up, database rights and rights in data, semiconductor chip topography rights, mask works, utility models, domain names and all similar rights and, in each case: (i) whether registered or not, (ii) including any applications to protect or register such rights, (iii) including all renewals and extensions of such rights or applications, (iv) whether vested, contingent or future and (v) wherever existing.|
|Insolvency Event||means an event where a party is unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986) or becomes insolvent or an order is made or a resolution passed for the administration, winding-up or dissolution of the other (otherwise than for the purposes of a solvent amalgamation or reconstruction) or an administrative or other receiver, manager, liquidator, administrator, trustee or similar officer is appointed over all or any substantial part of the assets of the other or the other enters into or proposes any composition or arrangement with its creditors generally or any analogous event occurs in any applicable jurisdiction.|
|Losses||means all incurred losses, liabilities, damages, costs, claims, demands, actions, proceedings, orders and expenses (including legal fees on a solicitor/client basis) and disbursements and costs of investigation, litigation, settlement, judgment interest and penalties.|
|Personal Data||means personal data as defined in the Data Protection Legislation and shall include, where applicable, personal data contained within, Interactive-sms.co.uk Customer Data.|
|Interactive-sms.co.uk Customer Data||means all information of whatever form relating to the Interactive-sms.co.uk Customer, its Affiliates, or business that is provided to Interactive-sms.co.uk in connection with the Interactive-sms.co.uk customer, including any information provided by its Users in connection with their access to and/or use of the Interactive-sms.co.uk or SaaS Applications.|
|SaaS Applications||means any software or applications owned by SaaS Provider and made available to Interactive-sms.co.uk Customers as part of the Interactive-sms.co.uk.|
|Interactive-sms.co.uk Customer Applicable Law||has the meaning set out in clause 6.|
|Interactive-sms.co.uk Customer Data Claim||has the meaning set out in clause 8.|
|Interactive-sms.co.uk Customer Indemnified Party||has the meaning set out in clause 8.|
|SaaS Documentation||means the documents (in whatever media) that accompany the Interactive-sms.co.uk or SaaS Applications, including all data, reports and specifications.|
|Siteon Applicable Law||has the meaning set out in clause 6.|
|Siteon Indemnified Party||has the meaning set out in clause 7.|
|Siteon IPR Claim||has the meaning set out in clause 7.|
|Interactive-sms.co.uk||means the software-as-a-service and associated use of the SaaS Applications provided remotely to the Interactive-sms.co.uk Customer for the benefit of itself and its Users on a subscription basis in accordance with the terms of this Agreement, and as further set out in the SaaS Documentation and the Schedule (Interactive-sms.co.uk). Where applicable, this shall include any error corrections, patches, fixes, updates, upgrades, new releases or new versions of software subsequently developed (if any).|
|SaaS Service Levels||means the standards to which the Services (or any part of them) are to be provided as set out in Schedule 1 (Service Levels).|
|SaaS Subscription Fee||means the fees referred to in clause 4 (SaaS Subscription Fee and Payment) and further set out in Schedule 2 (Interactive-sms.co.uk SaaS Subscription Fees).|
|SaaS User(s)||means the users that are authorised to use the Interactive-sms.co.uk as specified in the Schedule (Interactive-sms.co.uk). If the Schedule does not specify a ‘user figure’ or any other reference to the number of users, then the number of SaaS Users shall be deemed to be equivalent to the total number of authorised users that actually have access to the Interactive-sms.co.uk.|
|VAT||means: (i) value added tax as defined in the Value Added Tax Act 1994 and (ii) any similar tax in any other jurisdiction.|
In this Agreement, unless the context otherwise requires:
1.2.1 the singular includes the plural and vice versa;
1.2.2 references to sub-clauses, clauses, Schedules or Appendices (if any) are to sub-clauses, clauses, Schedules or Appendices of this Agreement;
1.2.3 references to persons include individuals, trusts, partnerships, unincorporated bodies, government entities, companies and/or corporations (in each case whether or not having separate legal personality);
1.2.4 references to including and include(s) shall be deemed to mean respectively including without limitation and include(s) without limitation;
1.2.5 in the event and to the extent only of any conflict between the clauses and the Schedules, the clauses shall prevail;
1.2.6 clause and schedule headings do not affect the interpretation of this Agreement; and
1.2.7 a reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.
2.1 In consideration of the mutual undertakings agreed under this Agreement, Siteon shall:
2.1.1 provide Interactive-sms.co.uk to the Interactive-sms.co.uk Customer for the benefit of itself and the SaaS Users with effect from the Commencement Date in accordance with this Agreement;
2.1.2 comply with the requirements of Schedule (Interactive-sms.co.uk) in performing its obligations under this Agreement;
2.1.3 provide Interactive-sms.co.uk to a standard that meets the SaaS Service Levels; and
2.1.4 ensure that Interactive-sms.co.uk is provided with the skill and care to be reasonably expected of a service provider which is a leader in the field of providing services similar to the Interactive-sms.co.uk, including in accordance with Good Industry Practice and with Siteon’s own established internal procedures.
3 Use of the Interactive-sms.co.uk and SaaS Applications
3.1 Siteon hereby grants a non-transferable, non-exclusive licence for the term of this Agreement to the Interactive-sms.co.uk Customer (for the benefit of itself and its SaaS Users) to use the SaaS Applications and SaaS Documentation to the extent necessary to receive the benefit of the Interactive-sms.co.uk.
3.2 Prior to providing SaaS Users with access to the Interactive-sms.co.uk, SaaS Applications or SaaS Documentation, Interactive-sms.co.uk Customer shall:
3.2.1 Upload a list of SaaS Users authorised to receive access to the Interactive-sms.co.uk; and
3.2.2 ensure that all SaaS Users are aware of the terms of this Agreement, including their obligation to comply with any other user terms applicable to the Interactive-sms.co.uk, SaaS Applications or SaaS Documentation and notified to the Interactive-sms.co.uk. The Interactive-sms.co.uk Customer shall only provide SaaS Users with access to the Interactive-sms.co.uk via the access method provided by Siteon and shall not provide access to anyone other than a SaaS User.
3.3 Interactive-sms.co.uk Customer shall ensure that in connection with the receipt of the Interactive-sms.co.uk, SaaS Applications or SaaS Documentation by itself and on behalf of the SaaS Users it shall comply, and shall procure that the SaaS Users comply, with the following conditions of use:
3.3.1 the Interactive-sms.co.uk and/or SaaS Applications may only be used in connection with Interactive-sms.co.uk Customer’s own internal business purposes and that of its Affiliates; and
3.3.2 the Interactive-sms.co.uk and/or SaaS Applications may only be used in connection with up to date compatible Internet browsers.
3.4 Except to the extent such activities are expressly agreed by the parties to this Agreement:
3.4.1 Interactive-sms.co.uk Customer’s rights to use the Interactive-sms.co.uk and/or SaaS Applications does not permit it, or SaaS Users, to copy, cut and paste, email, reproduce, publish, distribute, redistribute, broadcast, transmit, modify, adapt, edit, abstract, create derivative works of, store, archive, publicly display, sell or in any way commercially exploit any part of the Interactive-sms.co.uk and/or SaaS Applications;
3.4.2 Interactive-sms.co.uk Customer’s rights to benefit from the Interactive-sms.co.uk and/or SaaS Applications does not permit it to use the Interactive-sms.co.uk or SaaS Applications to provide outsourced services to third parties or make it available to any third party or allow or permit a third party to do so;
3.4.3 Interactive-sms.co.uk Customer’s rights to benefit from the Interactive-sms.co.uk and/or SaaS Applications does not permit it to combine, merge or otherwise permit the Interactive-sms.co.uk or SaaS Applications (or any part of them) to become incorporated in any other program, nor arrange or create derivative works based on it;
3.4.4 Interactive-sms.co.uk Customer’s rights to benefit from the Interactive-sms.co.uk and/or SaaS Applications does not permit it to attempt to decompile (as defined in section 50B of the Copyright, Designs and Patents Act 1988) the underlying software (or any part of it) that is used to provide the Interactive-sms.co.uk and/or SaaS Applications, except and only to the extent that such restriction is prohibited pursuant to section 50B of the Copyright, Designs and Patents Act 1988; and
3.4.5 Interactive-sms.co.uk Customer’s rights to benefit from the Interactive-sms.co.uk and/or SaaS Applications does not permit it to observe, study or test the functioning of the underlying software (or any part of it) that is used to provide the Interactive-sms.co.uk and/or SaaS Applications, except and only to the extent that such restriction is prohibited pursuant to section 50B of the Copyright, Designs and Patents Act 1988.
3.5 Interactive-sms.co.uk Customer warrants that it shall, and ensure that SaaS Users shall, keep confidential and, except as provided for in this Agreement, not share with any third party any ‘PIN’, ‘ID’ or similar password (if applicable) that it is provided with to facilitate SaaS Users’ access to the Interactive-sms.co.uk and/or SaaS Applications. Interactive-sms.co.uk Customer shall keep up-to-date records of any such passwords issued to SaaS Users and the names of SaaS Users. Interactive-sms.co.uk Customer shall contact Siteon if updates to any list of SaaS Users provided to Siteon are required, including when SaaS Users cease to be employed or engaged by Interactive-sms.co.uk Customer.
3.6 Interactive-sms.co.uk Customer shall, and shall procure that the SaaS Users shall, use due care and diligence to avoid introducing any software virus or other contaminant (including any bugs, worms, logic bombs, Trojan horses or any other self propagating or other such program) that may infect or cause damage to the Interactive-sms.co.uk, SaaS Applications or SaaS Provider’s systems or otherwise disrupt the provision of the Interactive-sms.co.uk.
3.7 Where Interactive-sms.co.uk Customer is permitted in accordance with this Agreement to allow a third party or Affiliate to benefit from the Interactive-sms.co.uk and/or SaaS Applications, Interactive-sms.co.uk Customer shall ensure that all such use:
3.7.1 does not exceed Interactive-sms.co.uk Customer’s permitted use;
3.7.2 is controlled by Interactive-sms.co.uk Customer; and
3.7.3 is otherwise subject to and in accordance with the terms of this Agreement.
3.8 Siteon reserves the right to monitor usage by all SaaS Users (in terms of audits) during the term of this Agreement for the purpose of (among others) ensuring compliance with the terms of this Agreement. Any such audit may be carried out by Siteon or a third party authorised by Siteon at Siteon’s sole expense. If any audit reveals that any password has been provided to an individual that is not a SaaS User, Interactive-sms.co.uk Customer shall, without delay, disable any such passwords and notify Siteon immediately.
3.9 In case of unauthorised use of the Interactive-sms.co.uk by a Interactive-sms.co.uk Customer or a SaaS User, Siteon reserves the right to deny access to the Interactive-sms.co.uk and/or SaaS Applications to Interactive-sms.co.uk Customer or any SaaS User by blocking without prior notification the IP address of Interactive-sms.co.uk Customer or SaaS Users used to access the Interactive-sms.co.uk and/or SaaS Applications.
4 SaaS Subscription Fee and Payment
4.1 The Interactive-sms.co.uk Customer shall pay Siteon the SaaS Subscription Fees in connection with the receipt of the Interactive-sms.co.uk and/or use of the SaaS Applications.
4.2 All amounts due under this Agreement are exclusive of VAT, sales or other tax applicable which shall be paid in addition by the Interactive-sms.co.uk Customer at the rate and in the manner for the time being prescribed by law.
4.3 If a party fails to make any payment that is properly due to the other under this Agreement by the due date for payment, then the defaulting party shall pay interest on the overdue amount at the annual rate of the Late Payment of Commercial Debts rate. Such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. The defaulting party shall pay the interest together with the overdue amount. This clause shall not apply to payments the defaulting party disputes in good faith.
5.1 Each of the parties warrants to the other that it has full power and authority to enter into and perform its obligations under this Agreement.
5.2 Siteon warrants to the Interactive-sms.co.uk Customer that:
5.2.1 Siteon has the right, power and authority to grant to the Interactive-sms.co.uk Customer the rights (if any) contemplated herein and supply the Interactive-sms.co.uk and/or license the SaaS Applications;
5.2.2 the SaaS website will provide users with adequate instructions to enable them to effectively use the Interactive-sms.co.uk and/or SaaS Applications;
5.2.3 the Interactive-sms.co.uk and/or SaaS Applications shall in accordance with Good Industry Practice be free from viruses and other malicious code; and
5.2.4 the receipt of the Interactive-sms.co.uk or the use of the SaaS Applications or SaaS Documentation does not infringe the Intellectual Property Rights of any third party.
5.3 Upon notification in writing Siteon undertakes to use all reasonable endeavours to remedy any fault arising from a breach of clause 5.2 within 90 days after notification. If Siteon rectifies such fault within such time then it will have no other liability of any kind in respect of the fault. Such remedy shall be free of charge to the Interactive-sms.co.uk Customer unless the fault is found not to arise from a breach of clause 5.2, at which point the Interactive-sms.co.uk Customer shall pay all reasonable and demonstrable costs and expenses associated with the fault incurred by Siteon.
5.4 the Interactive-sms.co.uk Customer acknowledges and agrees that:
5.4.1 Siteon is not and cannot be aware of the extent of any potential Losses resulting from any failure by Siteon to discharge its obligations under this Agreement;
5.4.2 the Interactive-sms.co.uk and/or SaaS Applications have not been prepared to meet the Interactive-sms.co.uk Customer’s individual requirements and that they cannot be tested in every operating environment so as to produce software which is error free or operates without interruption; and
5.4.3 it is the Interactive-sms.co.uk Customer’s responsibility to ensure the facilities and functions of the Interactive-sms.co.uk and/or SaaS Applications meet the Interactive-sms.co.uk Customer’s requirements.
5.5 Siteon does not warrant or represent that the Interactive-sms.co.uk and/or SaaS Applications shall be:
5.5.1 uninterrupted or error free; or
5.5.2 interoperable with third party software or equipment.
5.6 Save to the extent set out in this clause 5 (Warranties) or to the extent that any exclusion is prohibited by law, no other representations, warranties or conditions, express or implied, statutory or otherwise (including as to condition, satisfactory quality, performance or fitness for purpose), are given or assumed by Siteon in respect of the Interactive-sms.co.uk, SaaS Applications and/or SaaS Documentation and any such representations, warranties or conditions are hereby excluded.
5.7 Any warranties given by Siteon shall be subject to the Interactive-sms.co.uk Customer using the Interactive-sms.co.uk and/or SaaS Applications in compliance with this Agreement, and Siteon shall not be liable under this clause for, or required to remedy, any problem arising from any defect or error wholly caused by third party software used in connection with the Interactive-sms.co.uk and/or SaaS Applications.
6 Compliance with Applicable Law
6.1 Siteon shall provide the Interactive-sms.co.uk in accordance with Applicable Law to the extent that such Applicable Law is general in nature or which affects or relates to a supply of services that are the same or similar to the Interactive-sms.co.uk (‘Siteon Applicable Law’). Siteon shall continue to perform the Interactive-sms.co.uk in accordance with all Siteon Applicable Law following any changes in any relevant Applicable Law.
6.2 The Interactive-sms.co.uk Customer shall use the Interactive-sms.co.uk and/or SaaS Application in accordance with Applicable Law to the extent that such Applicable Law is specific to the business of the Interactive-sms.co.uk Customer (‘Interactive-sms.co.uk Customer Applicable Law’). The Interactive-sms.co.uk Customer shall be responsible for the costs of any changes to the Interactive-sms.co.uk required following any change in any Siteon Applicable Law.
7 Siteon Intellectual Property Rights and Indemnity
7.1 All Intellectual Property Rights in and to the Interactive-sms.co.uk, SaaS Applications and SaaS Documentation shall vest and remain vested in Siteon. To the extent that the Interactive-sms.co.uk Customer acquires any Intellectual Property Rights in the Interactive-sms.co.uk, SaaS Applications and/or SaaS Documentation, Interactive-sms.co.uk Customer shall assign or procure the assignment of such Intellectual Property Rights with full title guarantee (including by way of present assignment of future Intellectual Property Rights) to Siteon. The Interactive-sms.co.uk Customer shall execute all such documents and do such things as Siteon may consider necessary to give effect to this clause.
7.2 Siteon shall indemnify, and keep the Interactive-sms.co.uk Customer and its Affiliates, SaaS Users, officers, directors, employees, agents, successors, and assignees (the ‘Siteon Indemnified Party’) indemnified at all times from and against any and all Losses, which are suffered by, and defend, and hold harmless against any Losses which are brought or threatened against, the Siteon Indemnified Party, in respect of the use of the Interactive-sms.co.uk and/or SaaS Applications or possession of the SaaS Documentation infringing the Intellectual Property Rights of any third party (‘Siteon IPR Claim’), provided that Siteon shall have no such liability if the Interactive-sms.co.uk Customer:
7.2.1 does not notify Siteon in writing setting out full details of any Siteon IPR Claim of which it has notice as soon as is reasonably possible;
7.2.2 makes any admission of liability or agrees any settlement or compromise of the relevant Siteon IPR Claim without the prior written consent of Siteon (which shall not be unreasonably withheld or delayed);
7.2.3 does not let Siteon at its request and own expense have the conduct of or settle all negotiations and litigation arising from the relevant Siteon IPR Claim; or
7.2.4 does not, at Siteon’s request and own expense, give Siteon all reasonable assistance in the circumstances described above.
7.3 If any Siteon IPR Claim is made or is reasonably likely to be made against Siteon Indemnified Party, Siteon shall promptly and at its own expense either:
7.3.1 procure for the Interactive-sms.co.uk Customer the right to continue using the Interactive-sms.co.uk and/or SaaS Applications or posses the SaaS Documentation; or
7.3.2 modify or replace the infringing part of the Interactive-sms.co.uk, SaaS Applications and/or SaaS Documentation and without adversely affecting the functionality of the Interactive-sms.co.uk as set out in this Agreement so as to avoid the infringement or alleged infringement, provided that if Siteon having used its reasonable endeavours, neither of the above can be accomplished on reasonable terms, Siteon shall (without prejudice to the indemnity above) refund the SaaS Subscription Fees paid by Interactive-sms.co.uk Customer in respect of the Interactive-sms.co.uk and/or SaaS Applications. Apart from the indemnity given by Siteon above, this shall be Interactive-sms.co.uk Customer’s sole and exclusive remedy in respect of the Interactive-sms.co.uk infringing Intellectual Property Rights.
8 Interactive-sms.co.uk Customer Data and Indemnity
8.1 The Interactive-sms.co.uk Customer hereby grants (and shall procure the grant of) a royalty-free, non-transferable (save to the extent set out in this clause 8), non-exclusive licence for the term of this Agreement to Siteon (together with a right for Siteon to sub-licence the same to and any third party suppliers for use on Siteon’s behalf) to use the Interactive-sms.co.uk Customer Data to the extent necessary to perform the Interactive-sms.co.uk and/or provide access to the SaaS Applications.
8.2 Interactive-sms.co.uk Customer acknowledges that Siteon has no control over any Interactive-sms.co.uk Customer Data hosted as part of the provision of the Interactive-sms.co.uk and does not purport to monitor the content of the Interactive-sms.co.uk Customer Data.
8.3 Interactive-sms.co.uk Customer shall, and shall procure that, the Interactive-sms.co.uk Customer Data does not:
8.3.1 breach Applicable Law;
8.3.2 infringe any third party Intellectual Property Rights; or
8.3.3 contain any material which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred, menacing, blasphemous,
(together ‘Infringing Data’).
8.4 Siteon will notify the Interactive-sms.co.uk Customer immediately if it becomes aware of any allegation that any Interactive-sms.co.uk Customer Data may be Infringing Data and Siteon shall have the right to remove the Interactive-sms.co.uk Customer Data from the Interactive-sms.co.uk without the need to consult the Interactive-sms.co.uk Customer.
8.5 The Interactive-sms.co.uk Customer shall indemnify, and keep Siteon and its Affiliates, officers, directors, employees, agents, successors, and assignees (the ‘Interactive-sms.co.uk Customer Indemnified Parties’) indemnified at all times from and against any and all Losses, which are suffered by, and defend, and hold harmless against any Losses which are brought or threatened against, SaaS Indemnified Party, in respect of any Infringing Data (‘Interactive-sms.co.uk Customer Data Claim’), provided that the Interactive-sms.co.uk Customer shall have no such liability if Siteon:
8.5.1 does not notify the Interactive-sms.co.uk Customer in writing setting out full details of any Interactive-sms.co.uk Customer Data Claim of which it has notice as soon as is reasonably possible;
8.5.2 makes any admission of liability or agrees any settlement or compromise of the relevant Interactive-sms.co.uk Customer Data Claim without the prior written consent of the Interactive-sms.co.uk Customer (which shall not be unreasonably withheld or delayed);
8.5.3 does not let the Interactive-sms.co.uk Customer at its request and own expense have the conduct of or settle all negotiations and litigation arising from the relevant Interactive-sms.co.uk Customer Data Claim; or
8.5.4 does not, at the Interactive-sms.co.uk Customer’s request and own expense, give the Interactive-sms.co.uk Customer all reasonable assistance in the circumstances described above.
9 Data Protection
9.1 Each party shall provide the other party with reasonable assistance in complying with its obligations under applicable Data Protection Legislation insofar as necessary to facilitate each party’s compliance with each party’s obligations in this Agreement.
9.2 The parties acknowledge and agree that the Interactive-sms.co.uk Customer shall be the Data Controller in respect of any Personal Data contained within the Interactive-sms.co.uk Customer Data.
9.3 In connection with the provision of the Interactive-sms.co.uk, the Data Processor shall:
9.3.1 process the Personal Data belonging to the Data Controller only in accordance with instructions from the Data Controller;
9.3.2 process the Personal Data belonging to the Data Controller only to the extent, and in such manner, as is necessary for the performance of its obligations under this Agreement;
9.3.3 implement appropriate technical and organisational measures to protect the Personal Data belonging to the Data Controller against unauthorised or unlawful processing and against accidental loss, destruction, damage, alteration or disclosure. These measures shall be appropriate to the harm which might result from any unauthorised or unlawful processing, accidental loss, destruction or damage to the Personal Data and having regard to the nature of the Personal Data which is to be protected;
9.3.4 The Data Controller authorises Siteon to transfer the Personal Data belonging to the Data Controller to any sub-contractors or third parties.
10 Confidential Information
10.1 Each party shall maintain the confidentiality of the other party’s Confidential Information and shall not without the prior written consent of the other use, disclose, copy or modify the other party’s Confidential Information (or permit others to do so) other than as necessary for the performance of its rights and obligations under this Agreement. Bookmark
10.2 Each party undertakes to:
10.2.1 disclose the other party’s Confidential Information only to those of its officers, employees, agents, professional advisers and contractors (including Siteon’s personnel) to whom and to the extent to which such disclosure is necessary for the purposes contemplated under this Agreement; and
10.2.2 to procure that such persons are made aware of and agree in writing to observe the obligations in this clause.
10.2.3 Each party shall give notice to the other of any unauthorised misuse, disclosure, theft or loss of the other party’s Confidential Information immediately upon becoming aware of the same.
10.3 The provisions of this clause shall not apply to information which:
10.3.1 is or comes into the public domain through no fault of the recipient, its officers, employees, agents or contractors;
10.3.2 is lawfully received by the recipient from a third party free of any obligation of confidence at the time of its disclosure;
10.3.3 is independently developed by the recipient, without access to or use of such information; or
10.3.4 is required by law, by court or governmental or regulatory order to be disclosed provided that the relevant party, where possible, notifies the other party at the earliest opportunity before making any disclosure.
10.4 The obligations under this clause shall survive the variation, expiry or termination of this Agreement for a period of five years thereafter.
11 Limits on liability
11.1 Subject to the following sub-clauses, in no event shall the aggregate liability of any party to the other party (or any SaaS Users), including liability for breach of contract (including under any indemnity), misrepresentation (whether tortuous or statutory), tort (including negligence), breach of statutory duty, warranty, strict liability or any other legal theory howsoever arising, in respect of all Losses arising under this Agreement exceed:`
11.1.1 in respect of any one claim, the price of the application; and
11.1.2 the monthly total amounts payable under this Agreement in respect of any and all claims arising under this Agreement.
11.2 Subject to clause 11.4, under no circumstances shall either party be liable to the other party (or any SaaS Users) for any of the following types of loss or damage arising under or in relation to the Agreement (whether arising for breach of contract (including under any indemnity), misrepresentation (whether tortuous or statutory), tort (including negligence), breach of statutory duty, warranty, strict liability or any other legal theory howsoever arising):
11.2.1 any loss of profits, business, contracts, anticipated savings, goodwill, or revenue, any wasted expenditure, or any loss or corruption of data (regardless of whether any of these types of loss or damage are direct, indirect or consequential); or
11.2.2 any indirect or consequential loss or damage whatsoever,
even if that party was aware of the possibility that such loss or damage might be incurred by the other.
11.3 The above limits on liability shall not limit either party’s financial liability for any indemnities provided by either party under this Agreement including the indemnity under clause 7 (SaaS Provider Intellectual Property Rights and Indemnity).
11.4 Notwithstanding the above neither party excludes or limits any liability for:
11.4.1 personal injury (including sickness and death) to the extent that such injury results from the negligence or wilful default of a party or its employees;
11.4.2 fraud, fraudulent misrepresentation or fraudulent concealment;
11.4.3 any breach of any obligations implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or
11.4.4 any other liability to the extent the same cannot be excluded or limited by law.
11.5 The parties agree that the limitations on liability in this Agreement are reasonable given their respective commercial positions and ability to purchase relevant insurance in respect of risks under this Agreement.
12 Force Majeure
12.1 Neither party (the ‘claiming party’) shall be liable to the other for any delay or failure to perform any of its obligations hereunder to the extent such delay or failure is due to Force Majeure provided that:
12.1.1 the claiming party could not have avoided such circumstances by taking precautions which it ought reasonably to have taken or planned for;
12.1.2 the claiming party has used and continues to use its reasonable endeavours to mitigate the consequences of such an event upon the performance of its obligations under this Agreement and to continue to perform its affected obligations;
12.1.3 the claiming party shall not be excused performance of its obligations unaffected by Force Majeure; and
12.1.4 the claiming party shall resume performance of its obligations affected by Force Majeure as soon as reasonably practicable.
12.2 The claiming party shall promptly give written notice forthwith to the other upon becoming aware of Force Majeure, which notice shall contain details of the circumstances giving rise to Force Majeure and its anticipated duration.
12.3 If, due to Force Majeure, a party is unable to perform a material obligation, or is delayed in or prevented from performing its obligations for a continuous period of more than 90 days, the other party may, within a further 10 days terminate this Agreement on notice, otherwise this Agreement shall continue in full force and effect.
13 Term and Termination
13.1 This Agreement shall commence on the Commencement Date and shall (subject to earlier termination pursuant to this clause 13) continue for an initial period of 12 months. It shall thereafter continue automatically until terminated in accordance with the terms of this Agreement. Either party may terminate this agreement without liability to the other by giving not less than 3 months prior notice from the end of the initial period.
13.2 Either party may, without prejudice to its other rights and remedies, by notice in writing to the other party immediately terminate this Agreement if the other:
13.2.1 is in material or persistent breach of any of its obligations under this Agreement and if that breach is capable of remedy and the other has failed to remedy that breach within 30 days after receiving written notice requiring it to remedy that breach; or
13.2.2 is the subject of an Insolvency Event.
14.1 In the event of termination of this Agreement for any reason:
14.1.1 the right to access the Interactive-sms.co.uk, SaaS Applications and/or SaaS Documentation provided under this Agreement shall terminate immediately;
14.1.2 The Interactive-sms.co.uk Customer shall within seven days return or destroy (at Siteon’s option) all Siteon’s Confidential Information or SaaS Documentation in its possession or under its control and all copies of such information; and
14.1.3 all provisions of this Agreement shall cease to have effect, except that any provision which can reasonably be inferred as continuing or is expressly stated to continue shall continue in full force and effect.
15.1 Any notice or other communication given to a party under or in connection with the Agreement (a ‘Notice’) shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause.
15.2 A Notice shall be deemed to have been received:
15.2.1 if delivered personally: when left at the address referred to in clause 15.1 (Notices);
15.2.2 by first-class post: two Business Days after posting;
15.2.3 by airmail: seven Business Days after posting;
15.2.4 by hand: on delivery;
15.2.5 by facsimile: on receipt of a successful transmission report from the correct number; and
15.2.6 by e-mail: on receipt of a read return mail from the correct address within 24 hours from delivery if no notice of delivery failure is received.
15.3 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
16 Entire Agreement
16.1 This Agreement constitutes the entire agreement between the parties in relation to its subject matter and replaces and extinguishes all prior agreements, draft agreements, arrangements, undertakings, or collateral contracts of any nature made by the parties, whether oral or written, in relation to that subject matter.
16.2 Each party acknowledges that in entering into this Agreement it has not relied upon any oral or written statements, collateral or other warranties, assurances, undertakings or representations which were made by or on behalf of the other party in relation to the subject-matter of this Agreement at any time before its signature, other than those which are set out expressly in this Agreement.
16.3 Each party hereby waives all rights and remedies which might otherwise be available to it in relation to any statements or other representations made under clause 16.2, but for clause 16.4.
16.4 Nothing in this clause shall exclude or restrict the liability of either party arising out of its pre-contract fraudulent misrepresentation or fraudulent concealment.
17.1 Any variation to the Agreement, including the introduction of any additional terms and conditions, shall only be binding when agreed in writing and signed by both parties.
17.2 In respect of any indemnity given by either party under this Agreement, the party which receives the benefit of the indemnity shall take all reasonable steps so as to reduce or mitigate the loss covered by the indemnity.
17.3 Nothing in this Agreement shall (except as expressly provided) be deemed to constitute a partnership, or create a relationship of principal and agent between the parties for any purpose.
17.4 For the purposes of the Contracts (Rights of Third Parties) Act 1999, this Agreement is not intended to and does not give any person who is not a party to it any right to enforce any of its provisions. However, this does not affect any rights or remedy of such a person that exists or is available apart from that Act.
17.5 No party may assign, novate, transfer, subcontract or encumber any right or obligation under this Agreement, in whole or in part, without the other’s prior written consent or except as expressly permitted in this Agreement.
17.6 No amendment or variation of this Agreement will be valid unless agreed in writing by an authorised signatory of each party.
17.7 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. 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.
17.8 A waiver of any right under this Agreement is only effective if it is in writing, and it applies only to the party to whom the waiver is addressed and the circumstances for which it is given. No waiver shall be implied by taking or failing to take any other action.
17.9 Unless specifically provided otherwise, rights arising under this Agreement are cumulative and do not exclude rights provided by law.
17.10 All payments under this Agreement will be made without set-off or counterclaim, free and clear of and without deduction of any taxes, levies, duties, charges and withholdings of any kind now or in future imposed in any jurisdiction.
17.11 The amounts due under this Agreement shall not change except as mutually agreed by the parties.
17.12 Each party will, at its own cost, do all further acts and execute all further documents necessary to give effect to this Agreement.
18.1 If either party has any dispute with the other in connection with this Agreement, then that party will promptly give full written particulars of the dispute to the other party, and the parties will, within 14 days of delivery of those particulars, meet and in good faith try to resolve the dispute.
18.2 If within 14 days the dispute is not resolved the parties shall consider whether the dispute should be referred to an alternative dispute resolution procedure (including mediation, arbitration or binding expert determination). If the parties do not agree that the dispute should be referred to an alternative dispute resolution either party shall be entitled to commence proceedings in court.
18.3 Nothing in this clause shall prejudice the right of either party to:
18.3.1 apply to Court for interim relief to prevent the violation by the other party of any proprietary interest, or any breach of the other party’s obligations which could cause irreparable harm to the first party; or
18.3.2 bring proceedings intended to result in the enforcement of a settlement agreement entered into between the parties in accordance with the foregoing provisions of this clause 18 or otherwise.
19 Governing law and jurisdiction
19.1 This Agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by and construed in accordance with the laws of England.
19.2 The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
Interactive-sms.co.uk include all error corrections, patches, fixes, updates, upgrades, new releases or new versions subsequently received (if any)]
2 SaaS Service Levels
Standard Service Level Agreement (SLA)
Hours of Coverage, Response Times & Escalation
The Siteon Software Support Ticketing System is the initial contact for all service related requests. The service is open during normal Office Hours: Monday-Friday: 9.30 AM – 4.30 PM and can be accessed at: –
|Impact Level||Explanation||Examples||Initial Response Time|
|Impact Level 1||Platform impact / affected||SaaS Platform is not available.||The Helpdesk will report the issue to the Account Manager who will attempt to assist over the phone or via e-mail; the initial contact will be made within 2 Hours. If the problem is not solved, an initial response from an Engineer will be made within 12 hours during business hours. If a Software up grade / installation is required this may be delayed.|
|Impact Level 2||Client / Service affected||A SaaS Client / Service is not functioning correctly.||The Helpdesk will report the issue to the Account Manager who will attempt to assist over the phone or via e-mail; the initial contact will be made within 4 Hours. If the problem is not solved, an initial response from an Engineer will be made within 24 hours during business hours. If a Software up grade / installation is required this may be delayed.|
|Impact Level 3||An Individual is affected||An individual User is unable to access the Platform.||Helpdesk will report the issue to the Account Manager who will attempt to assist the individual over the phone or via e-mail. Response will be within one day.|
|Informational Request||Platform up grade||Enhancement||Response within one Week.|
Impact Levels 1, 2 and 3 will be handled during normal business hours. If a Client does not receive contact within the specified time for their Impact Level, an email should be sent to: –
3 SaaS Applications
The Interactive-sms.co.uk messaging platform is an extremely cost efficient way for customers to get in touch with you and also for you to keep in touch with them.
Messages go direct and arrive within seconds. With such a large percentage of the population owning a mobile phone SMS Text Messaging cannot be beaten as a method for communicating. Users can send and receive messages anywhere, at home, on the train or even at work!
Whether you want to send or receive 1 or 50,000 SMS messages, Interactive-SMS provides a range of SMS tools suitable for your requirement.
The E-TrainingSystem.com is a web-based platform designed and built to deliver and manage learning and training events within an organisation. The focus is to simplify the process of training and learning.
Course administrators create courses, tests and certificates, add users, invite them to take the course and then utilise the full reporting functionality to track users progress. Students / users log into your secure branded login page, take the course, complete the test and download and print their certificates. Users can even be asked to leave feedback about each of the e-Training Courses completed using the integrated 5 Gold Star Ratings system or by answering your bespoke questions.
4CRM is a fully branded, Cloud based Customer Relationship Management Platform.
Businesses no longer need to rely on spreadsheets or paper records to keep track of their customer’s contact information, notes, sales enquiries, staff responses, quotes, calendars, messages and product information as 4CRM does it for you. 4CRM stores all the information securely and up to date in your own fully branded online 4CRM Platform.
4CRM is simple to use, is secure and is available online giving your authorised users access from any Internet enabled PC, MAC, Tablet or Smart Phone from anywhere in the world at any time. Users can add, edit and update; Customer information, clients notes, view shared calendars, manage events and send fully branded e-mail updates (to clients and other users) via the messaging centre. Users can also create bespoke forms, which can be allocated to individual clients accounts making sure all the correct information is available instantly for each client. 4CRM also includes a Client Document Drive where users can view, download, edit and store documents within each Clients account.
4CRM is securely backed up every 2 hours for your piece of mind and has a full time customer service and dedicated software development team.
Advanced 4CRM modules include; an integrated Invoicing platform and an Estimate and Quote facility completing your IT strategy in one go.
4CRM – keeping your Management, staff and customers up to date with your business.
The Trader Register is a secure on-line application where Consumers can search for Local Traders that have been vetted by their Local Trading Standards department. Businesses registered meet each areas minimum standards and have all demonstrated their commitment to fair and honest trading practices and delivering good customer service.
The Trader Register is secure, easy to use and is built and managed by Siteon on behalf of each Local Council Trading Standards Department. The system is continually being up dated, modified and developed and requires no User Licences or expensive equipment.
4 Interactive-sms.co.uk SaaS Subscription Fees
Interactive-sms.co.uk – Pricing
Interactive-sms.co.uk – Client Price Guide – V2.0 – April 13
Keyword Rental = £35.00 Per Month Per Keyword.
Clients receive the following discounts for buying Credits in Bulk: –
Minimum Order 100 Credits
Our Price (Pence per Credit +VAT)
Please note: – Messages sent to UK Mobile Phones use 1 Credit per sent Text message = to 160 Characters. For International Credit usage please request the International price guide.
|Quantity||Price Per Credit|
|0 – 9999||8.5 p|
|10000 – 24999||7.5 p|
|25000 – 49999||6.5 p|
|50000 – 99999||6.0 p|
|100000 – 249999||5.2 p|
|250000 – 499999||5.0 p|
|500000 – 999999||4.8 p|
|1000000 – 2999999||4.2 p|