HSS Management Software Service

 

1. TERMS AND CONDITIONS

These are the Terms and Conditions for EEF LIMITED trading as Make UK (“Make UK”) incorporated
and registered in England and Wales (company number 05950172) whose registered office is at Broadway House,Tothill Street, London, SW1H 9NQ

1.1 (“Supplier”) in relation the provision of its Services.

1.2 These Terms and Conditions form part of the End User Licence Agreement between the Supplier and the Customer in relation to the provision of such Services.

2. INTERPRETATION

2.1 The following definitions and rules of interpretation  apply to this Agreement. 

2.2 Unless the context otherwise requires, words and expressions defined in the Service Order Form shall  have the same meanings and:

This Agreement: the End User Licence Agreement between the Supplier and the Customer.

Available Services: the Implementation Services, Hosting Services and/or Maintenance and Support Services.

Business Day: any day which is not a Saturday, Sunday or public holiday in the UK. Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clauses 12.5 and 12.6.

Configuration: The configuration of the Software as specified in a Service Order Form or in section 1 of the Special Conditions (as applicable).

Contract Start Date: the date that the customer signs this Agreement

Customer Account Team: the individuals appointed by the Customer from time to time who shall serve as the Supplier's primary contacts for the Supplier's activities under this Agreement.

Customer Data: the data inputted into the information fields of the Software by the Customer, by Named Users, or by the Supplier on the Customer's behalf.

Customer's Project Manager: the member of the Customer Account Team appointed in accordance with Clause 7.2. 

Data Compliance Schedule: the data compliance schedule set out in part 4 of the Schedule to this Agreement.

Data Protection Legislation: has the meaning given to that term in the Data Compliance Schedule.

Fees: the fees payable to the Supplier, as described in a Service Order Form.

Hosting Services: the services that the Supplier provides to allow the Customer to access and use the Software as described in Clause 5.1 Implementation Services: the work the Supplier will perform to implement the Software and provide training, as set out in section 2 of the Special Conditions.

Initial Term: the initial term specified in the applicable Service Order Form.

Maintenance and Support: any error corrections, updates and upgrades that the Supplier may provide or perform with respect to the Software and Hosting Services, all as described in clause 5.7.

Named Users: those specific employees and independent contractors or other authorised third parties (up to the total number of Named User
licences specified in the Service Order Form) who are authorised to use the Software under this Agreement.

Normal Business Hours: 8.30 am to 5.00 pm local
UK time, each Business Day.

Renewal Period: the renewal period set out in the applicable Service Order Form.

Service Level Arrangements: the service level arrangements set out in Clause 5.13.

Service Order Form: the service order form, agreed in accordance with clause 4.1, describing the Services to be provided by the Supplier and the related matters listed in the original Service Order Form set out in part 1 of the Schedule to this Agreement.

Services: the Available Services which are provided by the Supplier under a Service Order Form. Services Start Date: has the meaning given in clause 3.5.

Software: the Supplier's proprietary software in machine-readable object code form, including any error corrections, updates, upgrades, modifications and enhancements to it provided to the Customer under this Agreement.

Special Conditions: the special conditions set out in part 3 of the Schedule to this Agreement (if any).

Supplier Account Team: the individuals appointed by the Supplier from time to time who shall serve as the Customer's primary contacts for the Customer's activities under this Agreement.

Virus: any thing or device (including any software,code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.

Year: a period of twelve calendar months commencing on the applicable Services Start Date or on any anniversary thereof.

2.3 References to clauses are to the clauses of these Terms and Conditions.

2.4 Clause and paragraph headings shall not affect the interpretation of this Agreement. 

2.5 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality), and a company includes

any company, corporation or other body corporate, wherever and however incorporated or established.

2.6 Unless the context otherwise requires, words in the singular shall include the plural, words in the plural

include the singular, and a reference to one gender shall include a reference to the other genders.

2.7 A reference to writing or written includes faxes and email.

2.8 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted

from time to time.

2.9 A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.

2.10 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit

the sense of the words, description, definition, phrase or term preceding those terms.

2.11 In the event of an inconsistency between the main body of the Agreement and the Schedule to this Agreement and/or between the provisions of the parts of the Schedule to this Agreement, the following order of priority shall apply: (i) the main body; (ii) the applicable Service Order Form(s); (iii) the Special Conditions (if any); and (iv) these Terms and Conditions.

2.12 These Terms and Conditions shall apply to the supply of all Services except where application to one or the other is specified.

2.13 The Special Conditions shall apply to the Services to be carried out under the original Service Order Form only, unless expressly stated otherwise in the applicable Service Order Form.

3. COMMENCEMENT AND DURATION

3.1 This Agreement shall commence on the Contract Start Date and shall continue, unless and until either party gives to the other party written notice to terminate. Such notice shall expire on the expiry of all Service Order Forms entered into before the date on which it is served.

3.2 If there are no ongoing Service Order Forms as at the date notice to terminate is served under clause 3.1, such notice shall terminate this Agreement with immediate effect.

3.3 The parties shall not enter into any further Service  Order Forms after the date on which notice to  terminate is served under clause 3.1. 

3.4 The Customer may procure any of the Available Services by agreeing a Service Order Form with the  Supplier pursuant to clause 4.1

3.5 The Supplier shall provide the Services from the date  specified in the relevant Service Order Form (Services  Start Date) and shall continue to provide such Services  for the duration of the Initial Term and each  subsequent Renewal Period specified in the applicable  Service Order Form, unless and until:
(a) this Agreement is terminated in accordance with its 
terms; or 

(b) either party gives not less than 90 days’ written  notice to terminate the applicable Service Order  Form, in which case the Service Order Form will terminate automatically at the end of the Initial  Term (or the relevant Renewal Period).

3.6 For avoidance of doubt there is no option to terminate a Service Order Form for convenience during the Initial Term. A multi year Service Order Form will exist for the full Initial Term. Additionally if the Service Order Form renews in accordance with clause

3.5, there is no option to terminate for convenience during the Renewal Period. Termination under clause 16.1 or any  other provision of this Agreement is not affected.

4. SERVICE ORDER FORMS

4.1 Each Service Order Form shall be agreed in the 
following manner:

(a) the Customer shall ask the Supplier to provide any or all of the Available Services and provide the Supplier with as much information as the Supplier reasonably requests in order to prepare a draft Service Order Form for the Available Services requested;

(b) following receipt of the information requested from the Customer, the Supplier shall provide the Customer with a draft Service Order Form; 

(c) the Customer shall complete the Service Order Form, sign and return it to the Supplier; 

(d) the Supplier shall review and, once agreed, countersign the Service Order Form

4.2 Once a Service Order Form has been agreed and signed in accordance with clause 4.1,no amendment shall be made to it except in accordance with clause 20.2

4.3 Each Service Order Form shall be part of this Agreement and shall not form a separate contract to it.

5. SUPPLIER’S OBLIGATIONS LICENCE

5.1 The Supplier hereby grants a non-exclusive, nontransferable licence to the Customer, on and subject to the terms and conditions of this Agreement, to allow any Named Users (up to the total number of Named User licences specified in the Service Order Form) to access the Software through Hosting Services that conform to International Standard on Assurance Engagements (ISAE) No. 3402 devised by the International Auditing and Assurance Standards Board, and to use the Software solely for the Customer's business purposes. SOFTWARE

5.2 The Supplier undertakes that the Software will operate substantially in accordance with this Agreement and that the Services will be performed with reasonable skill and care.

5.3 The undertaking in clause 5.2 shall not apply to the extent of any non-conformance which is caused by use of the Software contrary to the Supplier's instructions or modification or alteration of the Software by any party other than the Supplier or the Supplier's duly authorised contractors or agents. If the Software does not conform with the foregoing warranty, the Supplier will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer's sole and exclusive remedy for any breach of the undertaking set out in clause 5.2.

5.4 Notwithstanding the foregoing, the Supplier:

(a) does not warrant that the Customer’s use of the Software and the Services will be uninterrupted or error-free.

(b) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities. 

5.5 This Agreement shall not prevent the Supplier from entering into similar agreements with third parties, or from independently developing, using, selling or licensing materials, products or services which are similar to those provided under this Agreement

. MAINTENANCE AND SUPPORT SERVICES

5.6 The Supplier shall use commercially reasonable endeavours to make the Services (other than the Implementation Services, and technical support which is separately specified below) available 24 hours a day, seven days a week, and to ensure that:

(a) planned maintenance; and

(b) unscheduled maintenance, provided that the Supplier has used reasonable endeavours to give the Customer at least 6 Normal Business Hours’ notice in advance,

of the hosting equipment, facility, Software or other aspects of the Hosting Services that may require interruption of the Hosting Services (Maintenance Events) are not performed during Normal Business Hours.

5.7 Maintenance includes all regularly scheduled error corrections, software updates and upgrades limited to improvements to features described in the Service Order Form and/or in the Special Conditions. Support for additional features developed by the Supplier, may be purchased separately at the Supplier's then current rates.

5.8 The Supplier shall maintain and update the Software. Should the Customer determine that the Software includes a defect, the Customer may at any time file error reports. During maintenance periods, the Supplier may, at its discretion, upgrade versions, install error corrections and apply patches to the hosted systems. The Supplier shall use all reasonable endeavours to avoid unscheduled downtime for Software maintenance.

5.9 The Supplier shall provide the Customer with technical support services. The Customer personnel named as Customer Support Representatives (CSRs) shall be authorised to contact the Supplier for technical support services. The Supplier shall provide technical support services only to that specified set of CSRs.

5.10 Supplier technical support shall accept voicemail and e-mail incident submittal from CSRs 24 hours a day, 7 days a week. The Supplier technical support call centre shall accept calls for English language telephone support during Normal Business Hours within Business Days. The Supplier shall use reasonable endeavours to process support requests, issue trouble ticket tracking numbers if necessary, determine the source of the problem and respond to the Customer during the same Business Day, with a typical daytime response within 24 hours.

5.11 The Supplier shall provide monitoring of its Hosting Services 24 hours a day seven days a week. The Supplier shall notify the CSRs of Maintenance Events (as defined in clause 5.6(b)) that may affect the availability of the Hosting Services via status.shesoftware.com.

SERVICE LEVELS

5.12 The Service Level Arrangements described in clause

5.13 shall apply with effect from the date the Implementation Services have been satisfactorily completed. 5.13 The Supplier shall use its reasonable commercial endeavours to provide availability of at least 99.9% on average over any 30 day period. Availability does not include Maintenance Events as described in clause 5.6, Customer-caused or third party-caused outages or disruptions (except to the extent that such outages or disruptions are caused by those duly authorised third parties sub-contracted by the Supplier to perform the Services), or outages or disruptions attributable in whole or in part to force majeure events within the meaning of clause 17.

5.14 For avoidance of doubt, ‘availability’ is defined as the ability of the services and systems providing the Software to respond to a legitimately formatted request at the hosting facility’s Internet endpoint. Local issues affecting access to the Software from within the Customer network or general issues affecting Internet traffic and which are outside of the control of the Supplier do not constitute unavailability of the Software.

6. CUSTOMER’S USE OF SERVICES AND OBLIGATIONS

6.1 The Customer shall:

(a) provide the Supplier with all necessary co-operation in relation to this Agreement, and with all necessary access to such information as may be required by the Supplier in order to render the Services, including but not limited to Customer Data, security access information and software interfaces to the Customer's other business applications;

(b) provide such personnel assistance, including the Customer Account Team and other Customer personnel, as may be reasonably requested by the Supplier from time to time.

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

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

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

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

(g) use reasonable endeavours to prevent any unauthorised access to, or use of, the Software and notify the Supplier promptly of any such unauthorised access or use;

(h) provide front-line support to Named Users who are not the designated CSRs. However, the Customer's designated CSRs may contact Supplier technical support in order to report problems from Named Users that the Customer's designated CSRs cannot resolve themselves after they have performed a reasonable level of diagnosis;

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

(j) provide references to prospective customers at the Supplier's reasonable request, including phone calls and site visits.

6.2 In relation to Named Users, the Customer shall ensure that:

(a) the maximum number of users that it authorises to access and use the Software does not exceed the number of Named User licences specified in the Service Order Form, and that any Named Userlicence is used only by the relevant individual Named User unless that licence has been reassigned in its entirety to another individual Named User (in which event the previous Named User shall no longer have any right to access or use the Software);

(b) each Named User keeps the log-in details of their account confidential and regularly changes any passwords; and

(c) each Named User complies with all applicable laws and regulations and the terms of this Agreement as appropriate.

6.3 The Customer shall not:

(a) knowingly store, distribute or transmit any Virus, or any material through the Hosting Services that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; depicts sexually explicit images; promotes unlawful violence; is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or in a manner that is otherwise illegal or causes damage or injury to any person or property; and the Supplier reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer’s access to any material that breaches the provisions of this clause.

(b) attempt to copy, duplicate, modify, create derivative works from or distribute all or any portion of the Software except to the extent expressly set out in this Agreement or as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties; or

(c) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software, except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties; or

(d) access all or any part of the Software or Hosting Services in order to build a product or service which competes with the Software and/or the Services; or (e) use the Software or Hosting Services to provide services to third parties except with the prior written agreement of the Supplier; or

(f) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services available to any third party except the Named Users, or

(g) subject to clause 20.3, transfer, temporarily or permanently, any of its rights under this Agreement, or

(h) attempt to obtain, or assist third parties in obtaining, access to the Software, other than as provided under this clause 6.3; or

(i) allow the maximum number of users that it authorises to access and use the Software to exceed the number of Named User licences specified in the Service Order For, nor allow any Named User licence to be used by more than one individual Named User unless that licence it has been reassigned in its entirety to another individual Named User (in which event the previous Named User shall no longer have any right to access or use the Software).

6.4 The rights provided under this clause 6 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer.

7. IMPLEMENTATION AND ACCEPTANCE

7.1 The Supplier shall:

(a) use reasonable endeavours to perform the Implementation Services as specified in the Service Order Form and/or in the Special Conditions;

(b) provide training in accordance with the Service Order Form.

7.2 The Customer shall appoint the Customer's Project Manager, who shall have the authority to contractually bind the Customer on all matters relating to this Agreement. The Customer shall use reasonable endeavours to ensure continuity of the Customer's Project Manager;

7.3 The Supplier and the Customer shall co-operate in implementing the Services in accordance with the implementation provisions in the Service Order Form and/or the Special Conditions.

7.4 Within five days of the Supplier's delivery to the Customer of the Implementation Services, the Customer shall review the Configuration to confirm that it functions in material conformance with the applicable portion of the Service Order Form and/or the Special Conditions. If the Configuration fails in any material respect to conform with such provisions, the Customer shall give the Supplier a detailed description of any such non-conformance ("Error"), in writing, within the five-day review period

7.5 With respect to any Errors, the Supplier shall use reasonable endeavours to correct any such Error within a reasonable time and, on completion, submit the corrected Configuration to the Customer. The provisions of this clause 7.5 shall then apply again, up to three additional times. If the Supplier is unable to correct such Error after three attempts, either party may terminate this Agreement without further liability to the other party.

7.6 On accepting the Configuration, the Customer shall sign the Supplier’s acceptance certificate. In any case, if the Customer does not provide any written comments in the five-day period specified in clause 7.5 above, or if the Configuration is found to conform with the applicable portion of the Service Order Form and/or the Special Conditions, the Configuration shall be deemed accepted. For the avoidance of doubt, any use of the Software by the Customer in a live environment, after it has been rolled out to the Customer’s employees for operational purposes, will be treated as acceptance by the Customer and any failure to sign the Supplier’s acceptance certificate shall not relieve the Customer of its obligations to make payment of the Fees. Any further Implementation services provided by the Supplier after acceptance or deemed acceptance shall not alter that status of that acceptance.

8. CHANGES TO SERVICES 8.1 The Customer acknowledges that the Supplier may amend develop and update the Software in its discretion from time to time without notice to or requiring any consent from the Customer, provided that the amended developed or updated Software shall continue to comply with the undertaking in clause 5.2.

9. CUSTOMER DATA AND DATA PROTECTION

9.1 The Customer shall own all rights, title and interest in and to all of the Customer Data.

9.2 Both parties shall comply with all applicable requirements of the Data Protection Legislation and shall process personal data only in accordance with the terms of the Data Compliance Schedule. The Data Compliance Schedule is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.

9.3 The Customer shall be entitled to unlimited data storage relating to its use of the Product subject to a “reasonable use” policy.

10. CHARGES AND PAYMENT

10.1 The Customer shall pay the Implementation Services Fees and the annual Software Licence Fees set out in the Service Order Form for the implementation, use, maintenance and support of the Software.

10.2 The Customer shall reimburse the Supplier for all actual, reasonable travel expenses including, but not limited to, airfare, hotel and meals incurred by the Supplier in performance of the Services.

10.3 All amounts and fees stated or referred to in this Agreement are exclusive of VAT, which shall be added to the Supplier's invoice(s) at the appropriate rate.

10.4 The Supplier shall invoice the Customer upon the date of this Agreement and then in advance of each anniversary of the Contract Start Date such that the Supplier can expect to receive payment before the anniversary of the Contract Start Date. Unless otherwise specified in a Service Order Form, the Supplier shall be entitled, with effect from each anniversary of the Contract Start Date, to increase the Fees by the greater of 5% or the same percentage as the cumulative average increase in the United Kingdom Retail Price Index (RPI) calculated from the date of the last increase in the Fees (or Contract Start Date for the first such increase). For the avoidance of doubt the Supplier is entitled to increase Fees based on cumulative RPI increases during the Initial Term and any subsequent Year even if, for any reason, the Supplier does not implement an increase at the end of the Initial Term or any subsequent Year.

10.5 The Customer shall provide the Supplier with such paperwork as is necessary to enable the Supplier to invoice the Customer as specified in clause 10.4.

10.6 Each invoice is due and payable 30 days after the invoice date. If the Supplier has not received payment before the anniversary of the Contract Start Date, and without prejudice to any other rights and remedies of the Supplier:

(a) the Supplier may, without liability to the Customer, disable the Customer’s account and the passwords and access of the Customer and its Named Users to all or any part of the Software, and the Supplier shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and

(b) interest shall accrue on such due amounts at an annual rate equal to 4% over the then current base lending rate of Lloyds Bank PLC at the date the relevant invoice was issued, commencing on the due date and continuing until fully paid, whether before or after judgment.

11. PROPRIETARY RIGHTS

11.1 The Customer acknowledges and agrees that the Supplier and/or its licensors own all intellectual property rights in the Software and the Services. Except as expressly stated herein, this Agreement does not grant the Customer any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Software, Services or any related documentation.

11.2 The Supplier confirms that it has all the rights in relation to the Software that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement.

12. CONFIDENTIALITY

12.1 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 include information that:

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

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

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

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

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

12.2 Each party shall hold the other's Confidential Information in confidence and, unless required by law, not make the other's Confidential Information available to any third party, or use the other's Confidential Information for any purpose other than the implementation of this Agreement or as expressly permitted by this Agreement.

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

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

12.5 The Customer acknowledges that the Software, the results of any performance tests of the Software and the Services constitute the Supplier's Confidential Information.

12.6 The Supplier acknowledges that the Customer Data is the Confidential Information of the Customer.

12.7 Notwithstanding any other clause, term or provision of this Agreement, the Customer agrees that the Supplier shall be authorised to process Customer Data, anonymised and aggregated with the personal data of other customers, for the purpose of creating and, at its discretion, publishing benchmarking information.

12.8 This clause 12 shall survive termination of this Agreement, however arising.

13. PUBLICITY

13.1 The parties consent to the publication of a press release or other public announcement by either party regarding the entry into of this Agreement (with written approval from the Customer)

. 13.2 The Customer consents to the use by the Supplier of the Customer corporate logo on the supplier website and/or in other Supplier promotional materials (with written approval from the Customer).

13.3 The Customer agrees to the development of case studies and other promotional material illustrating practical use of the solution (with written approval from the Customer).

14. INDEMNITY

14.1 The Supplier shall defend the Customer, its officers, directors and employees against any claim that the Software infringes any United Kingdom patent effective as of the Contract Start Date, copyright, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:

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

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

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

14.2 In the defence or settlement of the claim, the Supplier may obtain for the Customer the right to continue using the Software, replace or modify the Software so that it becomes non-infringing or, if such remedies are not reasonably available, terminate this Agreement without liability to the Customer. The Supplier shall have no liability if the alleged infringement is based on:

(a) a modification of the Software by anyone other than the Supplier; or

(b) the Customer's use of the Software in a manner contrary to the instructions given to the Customer by the Supplier; or

(c) the Customer's use of the Software after notice of the alleged or actual infringement from the Supplier or any appropriate authority.

14.3 This clause 14 and clause 15.5(b) state the Customer’s sole and exclusive rights and remedies, and the Supplier’s entire obligations and liability, for patent, copyright, database or right of confidentiality infringement.

15. LIMITATION OF LIABILITY

15.1 This clause 15 sets out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents and subcontractors) to the Customer:

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

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

(c) in respect of any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including negligence) arising under or in connection with this Agreement

15.2 Nothing in this Agreement excludes the liability of the Supplier: 

(a) for death or personal injury caused by the Supplier's negligence; or

(b) for fraud or fraudulent misrepresentation. 

15.3 The Service Level Arrangements state the Customer's full and exclusive right and remedy, and the Supplier's only obligation and liability in respect of, the performance and/or availability of the Service, or their non-performance and non-availability.