Software as a Service (subscription access) Agreement (“the SaaS Terms”)
Effective 5 August 2019 (version 1.0)
Background
A Arranger has developed a platform which is made available to customers for the purpose of managing funeral arrangements.
B Customer wishes to use Arranger's Services in its business operations.
C Arranger agrees to provide, and Customer has agreed to take and pay for, Arranger's Services subject to the terms and conditions of this Agreement.
Interpretation
1.1 The definitions and rules of interpretation in this clause apply in this Agreement.
Affiliate any entity or individual controlling, or any entity controlled by or under common control with a party, as the case may be. For the purposes of this definition, "control", with respect to an entity, shall mean the right to exercise, directly or indirectly, 50% or more of the voting rights attributable to the operation of the controlled entity, and with respect to any individual, the possession, directly or indirectly, in whole or in part, of the power to direct or cause the direction of the management or policies of a party.
Agreement the Order Form, the SaaS Terms as at the date of signature by Customer of the Order Form and the various documents incorporated into the SaaS Terms thereby, as amended from time to time.
Arranger Funeral Zone Limited incorporated and registered in England and Wales with company number 08135813 whose registered office is at 5 Providence Court, Pynes Hill, Exeter, Devon, EX2 5JL.
Arranger System the online platform through which certain Services are provided.
Arranger Training training to be provided in consideration of the Arranger Training Fee by Arranger to assist Customer to fully optimise their use of the Arranger System. This optional service includes but is not limited to, on-site training, webinar training and any online learning management system which may be provided by Arranger.
Arranger Training Fee Arranger’s fee for providing the Arranger Training as agreed and set out in the Order Form or as otherwise agreed between the parties.
Arranger Website the web address provided by Arranger to the Customer and Funeral Directors, where Customer and/or the Funeral Directors can access the Arranger System, and any other Documentation
Back Up Policy the document at https://www.arranger.com/backup-policy setting out Arranger’s data retention and back up process which may be updated by Arranger from time to time, any new version being applicable from the date of publication.
Bank Account the bank account of Arranger as advised to Customer from time to time for the purpose of taking payments.
Bereaved family friends associates and others in relation to the individual who is the subject of a Funeral Upload, who may use certain Services designed to be made available to them directly.
Business Day a day when banks in London are open for business in England other than a Saturday, Sunday or public holiday.
Business Hours 9.00 am to 5.00 pm UK time, each Business Day.
Confidential Information information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 11.6 or clause 11.7.
Customer the individual or organisation receiving the Services from Arranger as set out in the Order Form.
Customer Data the data input by Customer, Funeral Directors or Arranger on Customer's behalf, for the purpose of using the Services.
Data Protection Laws (DPL) the Data Protection Act 1998, the Data Protection Act 2018 (the DPA), the Data Protection Directive (95/46/EC), the Electronic Communications Data Protection Directive (2002/58/EC), the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2426/2003) (as amended) and General Data Protection Regulation (GDPR) and all applicable laws and regulations relating to the processing of the personal data and privacy. The terms controller, processor, data subject, personal data breach, processing and appropriate technical and organisational measures shall have the meaning as defined in the relevant DPL.
Documentation any materials made available to Customer by Arranger online via the Arranger Website including (but not limited to) a description of the Services and user instructions for the Services.
Funeral a ceremony or service in relation to one or more deceased individuals and any associated arrangements pertaining to the same.
Funeral Director those authorised by Customer to use the Services and Documentation, including but not limited to the employees, agents and independent contractors of Customer.
Funeral Upload the uploading of any details, information and data in relation to a Funeral.
Initial Subscription Period one or more Subscription Years as set out in the Order Form.
Intellectual Property Rights rights to inventions, copyright and related rights, moral rights, trade marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Order Form the document marked as such which sets out the Services to be provided by Arranger to Customer including specific details for the Initial Subscription Period, Subscription Fees, the number of permitted Funeral Uploads per annum and Payment Frequency.
Payment Frequency payment requirements in relation to the Subscription Fee i.e. monthly, quarterly or annually, in each case in advance, as set out on the Order Form or as otherwise agreed between the parties from time to time.
Renewal Period a period of 12 months starting on the first day after the end of the Initial Subscription Period and/or on the first day after the end of the previous Renewal Period as appropriate.
SLA the Service Level Agreement that details support in relation to the Services.
Services access to the Software (more particularly described in the Documentation) and services provided by Arranger to Customer under this Agreement, as set out in the Order Form or as otherwise agreed by the parties.
Setup Period the period between the date of this Agreement and the Start Date.
Software the online software applications provided by Arranger as part of the Services.
Specifications the current specifications for Customer’s network and systems as specified by Arranger from time to time.
Start Date the date as set out in the Order Form on which the Initial Subscription Period commences.
Subscription Fee the amount per annum set out in the Order Form or as otherwise agreed between the parties.
Subscription Term the Initial Subscription Period together with any subsequent Renewal Periods.
Subscription Year the 12-month period starting on the Start Date and ending the day before its first anniversary and each contiguous period of 12 months thereafter that is the subject of a subscription by Customer. Subscription Month (12 x one month periods in a Subscription Year) and Subscription Quarter (4 x three month periods in a Subscription Year) shall be construed accordingly.
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 viruses, trojans, worms, logic bombs or other material which is malicious or technologically harmful and other similar things or devices.
1.2 References to clauses and schedules are to the clauses and schedules of this Agreement.
1.3 Clause and schedule headings shall not affect the interpretation of this Agreement.
1.4 A person means 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.
1.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.6 A reference to writing or written includes e-mail but not fax.
1.7 Should any conflict arise between the SaaS Terms and the Order Form, the SaaS Terms shall take precedence unless the Order Form specifically states otherwise.
1.8 This Agreement is to be read in conjunction with the SLA scheduled to it. Should any conflict arise between the SaaS Terms and the SLA, the SaaS Terms shall take precedence unless the SLA specifically states otherwise.
2 Term and Subscriptions
2.1 The Agreement commences on the date of signature of the Order Form and will continue until the expiry of the Initial Subscription Period and shall automatically renew for successive 12 month Renewal Periods unless terminated in accordance with this Clause or by either party serving notice not less than 3 months before the end of the current period (being either the Initial Subscription Period or the then current Renewal Period).
2.2 For the Initial Subscription Period and for each Renewal Period, Customer shall subscribe for the right to make a number of Funeral Uploads (as specified in the Order Form or as otherwise agreed between the parties) to the Arranger Website in each relevant Subscription Year.
2.3 Arranger hereby grants to Customer a non-exclusive, non-transferable right (without the right to grant sublicences) to permit the Funeral Directors to use the Services and the Documentation (including the right to allow the Bereaved access to certain Services) during the Subscription Term solely for Customer's business operations (unless otherwise agreed between the parties) and subject to the terms and conditions of this Agreement. Where Services are designed to be used by the Bereaved then further terms and conditions for such use may apply.
2.4 In relation to the Funeral Directors, Customer undertakes that:
(a) each Funeral Director shall keep a secure password for the use of the Services and Documentation, that such passwords shall be kept confidential and shall be changed monthly.
(b) it shall maintain an up to date list of current Funeral Directors and provide such list to Arranger within 5 Business Days of Arranger's written request at any time;
(c) it shall promptly disable the password of any employee, contractor or agent who ceases to be a Funeral Director;
(d) it shall permit Arranger or Arranger's designated auditor to audit compliance with this Agreement. Each such audit may be conducted no more than once per annum, at Arranger's expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with Customer's normal conduct of business
2.5 Customer shall not, and shall procure that its Funeral Directors shall not, access, store, distribute or transmit any material during the course of its use of the Services that:
(a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
(b) facilitates illegal activity;
(c) depicts sexually explicit images;
(d) promotes unlawful violence;
(e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
(f) is otherwise illegal or causes damage or injury to any person or property;
and Arranger reserves the right, without liability or prejudice to its other rights to Customer, to remove from any computer, server or device controlled by Arranger any material that breaches the provisions of this clause or disable Customer’s access to the Arranger Website and/or the Services.
2.6 Customer shall not, and shall procure that Funeral Directors shall not, upload any material that contains viruses, corrupted files, or any other software or programs that may interfere with or damage the operation of the Arranger Website.
2.7 Customer shall without prejudice to the foregoing be responsible for configuring its information technology, computer programmes and platform in order to access the Arranger Website. Customer shall use and maintain its own Virus protection software.
2.8 Customer shall not:
(a) Except to the extent expressly permitted under this Agreement, and except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:
(i) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or
(ii) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
(iii) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party; or
(iv) attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation; or
(b) access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or
(c) unless otherwise agreed, use the Services and/or Documentation to provide services to third parties other than retail customers of Customer.
2.9 Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify Arranger.
2.10 The rights provided under this clause 2 are granted to Customer only, and, unless otherwise specifically agreed, shall not be considered granted to any Affiliate of Customer.
3 Utilisation of Funeral Uploads
3.1 Where, in any one Subscription Year, Customer uploads a greater number of Funeral Uploads to the Arranger System than the number of Funeral Uploads purchased for that Subscription Year, the excess number shall be chargeable on a pro rata basis in relation to the Subscription Fees payable for the number of Funeral Uploads purchased in that Subscription Year by Customer. Arranger may invoice Customer for the said fees from time to time and such invoices shall be payable within 30 days of the date of such invoice.
3.2 Where in any Subscription Year Customer uploads a lesser number of Funeral Uploads to the Arranger System than purchased within the Subscription Fees for that Subscription Year, the unused Funeral Uploads are lost at the end of the relevant Subscription Year and no portion of the Subscription Fee for that Subscription Year shall be refundable, nor shall Customer be entitled to reduce any payments for that Subscription Year as yet unpaid.
4 Services
4.1 Arranger shall, during the term of this Agreement provide the Services and make available the Documentation to Customer on and subject to the terms of this Agreement. During the Setup Period, Arranger shall provide Customer with access to and grant a limited a non-exclusive, non-transferable licence (without the right to grant sublicences) to permit the Funeral Directors to use the Services, which shall be used only for the purpose of training and onboarding only and not for Funeral Uploads other than for those purposes.
4.2 Arranger shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:
(a) planned maintenance carried out during the maintenance window as notified to Customer in advance; and
(b) unscheduled maintenance and in respect of same, Arranger shall use commercially reasonable endeavours to provide Customer with notice in advance or conduct such maintenance outside Business Hours.
4.3 As part of the Services and at no additional cost to the Customer, Arranger will use reasonable commercial endeavours to provide Customer with Arranger's standard customer support services during Support Hours in accordance with Arranger's SLA, which may be updated by Arranger from time to time, any new version being applicable from the date of publication.
5 Customer data
5.1 Arranger shall have no right, title to or interest in any or all of the Customer Data. Customer shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data.
5.2 Arranger shall use reasonable commercial endeavours to follow its archiving procedures for Customer Data as set out in its current Back Up Policy.
5.3 In the event of any loss or damage to Customer Data, Customer's sole and exclusive remedy against Arranger shall be for Arranger to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by Arranger. Arranger shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by Arranger to perform services related to Customer Data maintenance and back-up for which it shall remain fully liable under clause 5.10).
5.4 Arranger shall, in providing the Services and dealing with all Customer Data, comply with its Privacy Policy which may be updated by Arranger from time to time, any new version being applicable from the date of publication
5.5 Both parties will comply with all applicable requirements of the DPL.
5.6 The parties acknowledge that if Arranger processes any personal data on Customer's behalf when performing its obligations under this Agreement, Customer is the controller and Arranger is the processor for the purposes of the DPL.
5.7 Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to Arranger for the duration and purposes of this Agreement so that Arranger may lawfully use, process and transfer the personal data in accordance with this Agreement on Customer's behalf.
5.8 Arranger shall, in relation to any personal data processed in connection with the performance by Arranger of its obligations under this Agreement:
(a) process that personal data only on the documented written instructions of Customer, unless Arranger is required by law, to process personal data. Arranger shall promptly notify Customer of any such processing unless the law prohibits Arranger from doing so;
(b) not store any personal data outside of the United Kingdom or the European Economic Area unless the following conditions are fulfilled:
(i) Customer or Arranger provided appropriate safeguards in relation to the transfer;
(ii) the data subject has enforceable rights and effective legal remedies;
(iii) Arranger complies with its obligations under the DPL by providing an adequate level of protection to any personal data that is transferred; and
(iv) Arranger complies with reasonable instructions notified to it in advance by Customer with respect to the processing of the personal data;
(c) assist Customer in responding to any request from a data subject and in ensuring compliance with its obligations under the DPL with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(d) notify Customer without undue delay on becoming aware of a personal data breach relating to Customer’s Customer Data held under this Agreement;
(e) delete or return (at the election of Arranger) personal data and copies thereof to Customer on termination of the Agreement unless required by law to store the personal data provided that that nothing in this Agreement shall require the erasing of backup tapes/archival systems storage or material required to be kept for regulatory purposes, to which Arranger’s obligations shall continue for the period of any such retention; and
(f) maintain complete and accurate records and information to demonstrate its compliance with this clause 5 and promptly inform Customer if an instruction infringes the DPL.
5.9 Each party shall ensure that it has in place appropriate technical and organisational measures appropriate to the type and amount of data it controls or processes, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it).
5.10 Customer consents to Arranger appointing a third-party processor of personal data under this Agreement, where necessary. Arranger confirms that it has entered into a written agreement with any third-party processor to reflect the requirements of the DPL. Arranger shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause 5.
5.11 Arranger may, at any time on not less than 20 Business Days' notice, revise this clause 5 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply from the date of such replacement).
6 Third party providers
Customer acknowledges that the Services may enable or assist it to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that it does so solely at its own risk. Arranger makes no representation, warranty or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by the Customer, with any such third party. Any contract entered into and any transaction completed via any third-party website is between Customer and the relevant third party, and not Arranger. Customer shall be solely responsible for reviewing and agreeing to any third party website terms and conditions and privacy policy prior to using the relevant third-party website. Arranger does not endorse or approve any third-party website nor the content of any of the third-party websites made available via the Services.
7 Arranger's obligations
7.1 Subject to clause 7.3 below, Arranger warrants that the Services will be performed with reasonable skill and care substantially as specified in the Order Form and in accordance with the Documentation.
7.2 The warranty at clause 7.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to Arranger's instructions, or modification or alteration of the Services by any party other than Arranger or Arranger's contractors or agents. If the Services do not conform to the foregoing warranty, Arranger will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide Customer with an alternative means of accomplishing the desired performance. Such remedy constitutes Customer's sole and exclusive remedy for any breach of the warranty set out in clause 7.1.
7.3 Arranger:
(a) does not warrant that Customer's use of the Services will be uninterrupted or error-free; or that the Services, Documentation and/or the information obtained by Customer through or any output produced by the 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 Customer acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
7.4 Arranger may subcontract, either wholly or partially, any of its obligations under this Agreement to its Affiliates or any other third party, provided that, unless otherwise provided in this Agreement, Arranger remains responsible for any acts or omissions of any such subcontractors.
8 Customer's obligations
8.1 Customer shall:
(a) provide Arranger with all reasonably necessary co-operation in relation to this Agreement and access to such information as may reasonably be required by Arranger in order to provide the 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;
(d) ensure that only personnel who have been appropriately trained use the Services;
(e) ensure that the Funeral Directors use the Services and the Documentation in accordance with the terms and conditions of this Agreement and in compliance with the procedures set out in the Documentation and shall be responsible for any Funeral Director's breach of this Agreement;
(f) obtain and shall maintain all necessary software licences, consents, and permissions required by Customer so that Arranger, its contractors and agents can perform their obligations under this Agreement, including without limitation the Services;
(g) ensure that its network and systems comply with the Specifications; and
(h) be, except as otherwise expressly provided in this Agreement, solely responsible for, and Arranger shall have no liability in respect of, procuring, maintaining and securing its hardware, software, network connections and telecommunications links and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to Customer's hardware, software, network connections or telecommunications links or caused by the internet.
8.2 In the event of any delays in Customer's provision of such assistance, Arranger may adjust any agreed timetable for delivery schedule as reasonably necessary.
8.3 For the avoidance of doubt Customer shall not demonstrate or provide access to the Services to any competitor of Arranger providing similar services.
9 Charges and payment
9.1 The relevant portion of the Subscription Fees shall be payable by Customer, in cleared funds to the Bank Account in advance of the Start Date according to the Payment Frequency as follows:
(a) Monthly – 1 twelfth of the Subscription Fee for that Subscription Year prior to Start Date with further monthly instalments thereafter prior to the commencement of each Subscription Month;
(b) Quarterly – 1 quarter of the Subscription Fee for that Subscription Year prior to Start Date with quarterly instalments thereafter prior to the commencement of each Subscription Quarter;
(c) Annually – the whole Subscription Fee for that Subscription Year prior to Start Date.
9.2 If Customer has agreed to pay Arranger by direct debit, payment will be taken within the first 5 Business Days of the Subscription Month, Subscription Quarter or Subscription Year as applicable.
9.3 If Arranger has not received payment within 15 Business Days after the due date, and without prejudice to any other rights and remedies of Arranger:
(a) Arranger may, without liability to Customer, disable Customer's account and access to all or part of the Services and Arranger shall be under no obligation to provide any or all of the Services while the payment concerned remains unpaid; and
(b) interest shall accrue on a daily basis on such due amounts at an annual rate equal to 5% over the then current base lending rate of Arranger's bankers in the UK from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
9.4 All amounts and fees stated or referred to in this Agreement are:
(a) payable in GBP unless otherwise agreed;
(b) subject to the terms of this Agreement, non-cancellable and non-refundable;
(c) exclusive of value added tax, which shall be added to the charges payable at the appropriate rate.
9.5 The Subscription Fees for the second and subsequent Subscription Years of a Subscription Term (whether during the Initial Subscription Period or otherwise) may be increased in accordance with Retail Price Index by Arranger.
9.6 Services performed under the Agreement shall be charged at the current rate for such Services during the Subscription Year in which the Services are provided.
10 Intellectual Property Rights
10.1 Customer acknowledges and agrees that Arranger and/or its licensors own all Intellectual Property Rights in the Services and the Documentation. Except as expressly stated herein, this Agreement does not grant Customer any rights to or licences in respect of the Services or the Documentation.
10.2 Arranger warrants that it has all the rights in relation to the Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement.
10.3 Arranger may use Customer’s branding and name in publications and marketing material stating that they use the Arranger System.
11 Confidentiality
11.1 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 which is known to the receiving party; or
(d) is independently developed by the receiving party without use of or reference to the Confidential Information, which independent development can be shown by written evidence.
11.2 Subject to clause 11.4, each party shall hold the other's Confidential Information in confidence and not make the other's Confidential Information available to any third party other than its employees, agents or Affiliates or Funeral Directors as permitted under this Agreement, or use the other's Confidential Information or permit it to be used, for any purpose other than the implementation of this Agreement. Confidential Information may only be disclosed to employees, agents or Affiliates, or Funeral Directors where such disclosees are bound by obligations of confidentiality no less onerous than those included in this Agreement.
11.3 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 agents or Affiliates, or Funeral Directors, in violation of the terms of this Agreement.
11.4 A party may disclose Confidential Information to the minimum extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 11.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
11.5 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party other than its employees, agents or Affiliates, or Funeral Directors.
11.6 Customer acknowledges that details of the Services, and the results of any performance tests of the Services, constitute Arranger's Confidential Information.
11.7 Arranger acknowledges that the Customer Data is the Confidential Information of Customer.
11.8 Customer shall not make, or permit any person to make, any public announcement concerning this Agreement without the prior written consent of Arranger (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.
12 Indemnities
12.1 Customer Indemnities
12.1.1 Except in respect of claims in relation to the Services of infringement by Arranger of third party Intellectual Property Rights as specified in clause 12.3 below, Customer shall defend, indemnify and hold harmless Arranger against all and any claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) in each case made by a third party other than Customer specified on the Order Form arising out of or in connection with Customer's use or its Funeral Directors’ use of the Services and/or Documentation, provided that:
(a) Customer is given prompt notice of any such claim;
(b) Arranger provides reasonable co-operation to Customer in the defence and settlement of such claim, at Customer's expense; and
(c) Customer is given sole authority to defend or settle the claim.
12.1.2 Without prejudice to the generality of clause 12.1.1, Customer warrants that they own or are duly licensed to use all Intellectual Property Rights and other rights in any image, text, sound recording, video recording or other information that has been incorporated in the Services as supplied to Customer by Arranger. Customer shall defend, hold harmless and indemnify Arranger against any claim by a third party that such images, text, sound recordings or video recordings or other information infringe the said third party’s Intellectual Property Rights.
12.2 Without prejudice to clauses 12.1.1 and 12.1.2, where Arranger is informed of any breach of the third party’s Intellectual Property Rights, Arranger may use its reasonable endeavours to remove any such material from any computer, server or device controlled by Arranger where such materials are stored in breach of the third party’s Intellectual Property Rights and Customer shall be deemed to have agreed to the removal of same. Customer shall be solely responsible for any copies of such infringing material held on its own devices, servers and computers
123. Arranger Indemnity
12.3.1 Arranger shall hold harmless, defend and indemnify Customer, against any claim that the Services or Documentation infringe any Intellectual Property Rights provided that:
(a) Arranger is given prompt notice of any such claim;
(b) Customer provides reasonable co-operation to Arranger in the defence and settlement of such claim, at Arranger's expense; and
(c) Arranger is given sole authority to defend or settle the claim.
12.3.2 Should Customer’s use of the Services or part thereof be enjoined, or in the event that Arranger desires to minimise its potential liability hereunder, Arranger will, at its option and expense, (i) substitute non-infringing Services with functionality which is substantially similar; (ii) modify the Services so that they no longer infringe; or (iii) obtain for Customer the right to continue use of such Services If, in Arranger’s sole discretion, none of options set forth in the foregoing sentence is commercially reasonable, Arranger may terminate this Agreement with respect to the allegedly infringing Services and refund to Customer on a pro-rated basis, any pre-paid Subscription Fees in respect of the period after such termination. The foregoing states the entire liability and obligations of Arranger and Customer’s sole remedy for infringement, alleged infringement, or any breach of warranty of non-infringement, express or implied.
12.3.3 The indemnity in Clause 12.3.1 shall not apply and neither Arranger, nor its employees, agents or sub-contractors shall be liable to Customer to the extent that the alleged infringement is based on:
(a) a modification of the Services or Documentation by anyone other than Arranger or its employees, contractors or agents or those of its Affiliates; or
(b) Customer's use of the Services or Documentation in a manner contrary to the instructions given to Customer by Arranger; or
(c) any combination by Customer or its Funeral Directors of equipment, processes or software with Arranger’s Services.
13 Limitation of liability
13.1 Nothing in this Agreement excludes the liability of either party for:
(a) death or personal injury caused by that party’s negligence; or
(b) fraud or fraudulent misrepresentation.
13.2 Except as expressly and specifically provided in this Agreement:
(a) Customer assumes sole responsibility for information provided by and output obtained from the use of the Services and the Documentation by Customer, and for conclusions drawn from such use. Arranger shall have no liability for any damage caused by errors or omissions in any information, instructions in connection with the Services, or any actions taken by Arranger at Customer's direction;
(b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement; and
(c) the Services and the Documentation are provided to Customer on an "as is" basis
13.3 Subject to clause 13.1 and clause 13.2:
(a) Arranger 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 or anticipated savings, loss of business, business interruption, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, in each case whether direct or indirect or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this Agreement; and
(b) Arranger's total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to the Subscription Fees paid during the 12 months immediately preceding the date on which the claim arose.
14 Termination
14.1 Without affecting any other right or remedy available to it, or a party’s respective accrued rights and obligations, either party may terminate this Agreement with immediate effect by giving written notice to the other if:
(a) the other party
(i) commits a material breach of any term of this Agreement and fails to remedy that breach within a period of 20 Business Days after being notified in writing to do so;
(ii) repeatedly breaches any of the terms of this Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to this Agreement;
(iii) suspends payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 as if the words "it is proved to the satisfaction of the court" did not appear in sections 123(1)(e) or 123(2) of the IA 1986;
(iv) 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 any of its creditors other than (being a company) 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;
(b) an order is made for:
(i) the winding up of the other party;
(ii) the appointment of an administrator, or a notice of intention to appoint an administrator is given, over the other;
(c) the holder of a qualifying floating charge over the other’s assets has appointed an administrative receiver;
(d) a receiver is appointed over all or any of the other’s assets;
(e) a creditor or encumbrancer 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's assets and such attachment or process is not discharged within 14 days;
(f) any event occurs, or proceeding is taken, with respect to the other in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 14.1(a) to clause 14.1(e) (inclusive); or
(g) the other suspends or ceases carrying on all or a substantial part of its business.
14.2 Arranger may terminate this Agreement if there is a change of Control of Customer.
14.3 For the avoidance of doubt, where the Order Form includes more than one of the Services Arranger offers, Customer may terminate the provision of one or more (but not all) of the Services provided under this Agreement where there has been a material breach which has not been rectified without affecting the ongoing provision of the Services provided under this Agreement where no material breach has occurred, provided that Arranger may terminate the Agreement where the provision of the remaining Services by Arranger would, in Arranger’s sole opinion, be uneconomical or inefficient.
14.4 The following clauses will survive termination: 3.1 (to the extent that charges in respect of excess Funeral Uploads in the final Year of a contract become payable after termination or expiry of this Agreement), 6 (Third party providers), 9 (Payment of Charges), 11 (Confidentiality), 12 (Indemnities), 13 (Limitation of liability), 16 (Rights and remedies), 17 (Severance), 18 (Entire agreement and variation), 19 (No waiver), 23 (Third party rights), 24 (Governing law and jurisdiction, along with this sub-clause 14.4, any definitions in Clause 1 to the extent required by surviving clauses, and any others that by their nature should survive.
15 Force majeure
Arranger shall have no liability to 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 Arranger 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 Customer is notified of such an event and its expected duration. For the avoidance of doubt Brexit, meaning the United Kingdom’s transition out of the European Union, shall not be considered force majeure.
16 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.
17 Severance
17.1 If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Agreement.
17.2 If any provision or part-provision of this Agreement is deemed deleted under clause 17.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
18 Entire agreement and variation
18.1 This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous representations, discussions, negotiations, correspondence, promises, assurances, drafts, agreements, arrangements and understandings between them, whether written or oral, relating to its subject matter.
18.2 Customer agrees that, in entering into this Agreement, it has not relied on, nor it shall have any remedies in respect of any representation or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each party agrees that its only liability in respect of those representations and warranties that are set out in this Agreement (whether made innocently or negligently) shall be for breach of contract.
18.3 No variation of this Agreement shall be effective unless it is in writing and signed by authorised representatives of both of the parties
19 No waiver
19.1 Failure to exercise, or any delay in exercising, any right or remedy provided under this Agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict any further exercise of that or any other right or remedy.
19.2 No single or partial exercise of any right or remedy provided under this Agreement or by law shall preclude or restrict the further exercise of that or any other right or remedy.
20 Assignment
Except as otherwise provided in this Agreement, Customer may not assign, sub-contract or deal in any way with, any of its rights or obligations under this Agreement. For the avoidance of doubt Arranger may assign this Agreement to any present or future Affiliate, or to a third party as part of the sale of all or part of its business, or pursuant to any merger, consolidation, or other reorganisation, without the other party's consent. An assignee of either party, as authorised hereunder, shall assume all of the rights and obligations of the assigning party set forth in this Agreement.
21 Notice
21.1 A notice given to a party under or in connection with this Agreement shall be in writing and sent to the party at the address given in this Agreement or as otherwise notified in writing to the other party.
21.2 The following table sets out methods by which a notice may be sent and its corresponding deemed delivery date a
| Delivery method | Deemed delivery date and time |
| Delivery by hand or courier to registered office or director of a party | On signature of a delivery receipt or at the time the notice is left at the address |
| Pre-paid first class post or other next working day delivery service providing proof of postage to the registered office. | Midday on the second Business Day after posting or at the time recorded by the delivery service – whichever is earlier. |
| Email to an address used by the director of the other party as previously used in business correspondence. | At the time of transmission if on a Business Day, otherwise at 10:00 on the next Business Day after transmission. |
21.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
22 No partnership, agency etc.
Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, nor authorise any party to make or enter into any commitments for or on behalf of any other party.
23 Third party rights
A person who is not a party to this Agreement shall not have any rights under or in connection with it, provided that:
(a) the rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to this Agreement are not subject to the consent of any third party; and
(b) any employee, agent or sub-contractor of Arranger or an Affiliate or agent of Arranger will be entitled to the benefit of the exclusions of and limitations on Arranger’s liability contained in this Agreement.
24 Governing law and Jurisdiction
The validity, construction and performance of the Agreement shall be governed by English law and shall be subject to the exclusive jurisdiction of the English courts to which the Parties submit.
SCHEDULE - SERVICE LEVEL AGREEMENT
The support team offers dedicated support to Arranger clients:
The team provides support for all support queries as well as system related issues. The support team are open and operational during the hours listed below.
| Day(s) | Support Hours: |
| Monday - Friday | 8.30 to 18.00 (Friday 8.30 to 17.00) |
| Saturday Sunday Bank holiday | Limited service - P1 support requests |
Customers can raise queries and report issues outside of Support Hours by emailing support@funeralguide.co.uk / support@arranger.co.uk
Service Level Agreements
Priority may be changed at any time during investigation. *P2 to P4 response times only apply during Support Hours
| Priority status | Response time |
| Critical (P1) | 1 hour |
| High (P2) | 2 hours |
| Normal (P3) | 1 Business day |
| Low (P4) | 2 Business days |
Priority Definitions
| Priority | Response time | Description |
| Critical (P1) | 1 hour | Critical impact Issue preventing the business operation. A large number of users are prevented from working with no procedural workaround
|
| High (P2) | 2 hours | Significant impact Major issue occurring on severely impacting. large number of users are impacted by the issue but they are still able to work in a limited capacity
|
| Normal (P3) | 1 Business day | Normal impact Issue causing a partial or non critical loss of functionality. A small number of users affected.
|
| Low (P4) | 2 Business days | Minimal impact Issue occurring on system or question, comment, feature request or other non impacting issue.
|
Call Service Levels
Phone service level: 80/20
(80% of calls are answered within 20 seconds)
5% and less (counted after the 20 seconds)
v1.00 5 August 2019
